Citation Nr: 21029843 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-43 052 DATE: May 17, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, (hereinafter "diabetes") is denied. REFERRED The issue of entitlement to service connection for hypertension as secondary to the Veteran's diabetes mellitus has been raised by the record. See April 26, 20121 Appellate Brief. However, the Agency of Original Jurisdiction (AOJ) has not yet adjudicated this claim. Thus, the issue of entitlement to service connection for hypertension is REFERRED to the AOJ for appropriate action. FINDING OF FACT During the period on appeal, the Veteran's diabetes mellitus, type II, has not required a regulation of activities with the intention of avoiding hypoglycemic episodes. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for service-connected diabetes mellitus, type II, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1969 to November 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) that denied an increased rating for service-connected diabetes mellitus. It was previously before the Board in April 2019, where it was remanded for additional development, and now returns for further appellate review. The Veteran is currently rated at 20 percent disabling for his diabetes mellitus under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent rating is warranted when diabetes requires one or more daily injections of insulin or an oral hypoglycemic agent, and a restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is warranted for diabetes that requires one or more daily injections of insulin, a restricted diet, and regulation of activities. Id. A 60 percent rating is warranted when diabetes mellitus requires more than one daily injection of insulin, a restricted diet, and a regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Id. For VA benefits purposes the term "regulation of activities" contained in Diagnostic Code 7913 means that a Veteran must have a medical need, caused by the Veteran's diabetes mellitus, to avoid strenuous occupational or recreational activities with the intention of avoiding hypoglycemic episodes, and thus, medical evidence of limitation of activities required by a physician must be shown. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). The criteria for rating diabetes mellitus are conjunctive, and each element of the criteria is needed to meet the requirements for the specified evaluation. Id. For the reasons that follow, the Board finds the record against a finding that his service-connected diabetes by itself warrants a rating higher than 20 percent, as the record is against a finding that his treatment required a regulation of activities at any point during the appeal. The Veteran filed a claim for an increased rating for his service-connected diabetes in April 2012, along with a "Physician's Statement for Diabetes" provided by his private physician, Dr. S.E. that noted that the Veteran's disability required insulin, restricted diet, and regulation of activities. When asked to describe the Veteran's regulation of activities in the "Remarks" section, Dr. S.E. merely noted peripheral neuropathy and muscle weakness, without more, including whether any regulation of activities was physician-prescribed in order to avoid strenuous occupational or recreational activities with the intention of avoiding hypoglycemic episodes. A contemporaneous statement from Dr. S.E. dated April 9, 2012 notes that the Veteran's diabetes manifested muscle weakness that prevented him from climbing ladders and vehicles in his regular occupation, as well as decreased vision, decreased sensation in his feet, and erectile dysfunction. Again, a regulation of activities for VA purposes is not suggested. As such, a VA diabetes mellitus examination was afforded to the Veteran in August 2012 to determine the nature and severity of his diabetes. While the examiner noted that the Veteran's diabetes was managed by a restricted diet and prescribed insulin, he specifically noted that the Veteran did not require a regulation of activities for VA purposes. The Veteran was noted to visit his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, with no hospitalizations. The examiner further noted that the Veteran had none of the recognized complications of diabetes mellitus, including diabetic peripheral neuropathy, diabetic nephropathy, or diabetic retinopathy, nor did he have any other condition that is at least as likely as not (at least a 50 percent probability) due to diabetes mellitus, such as hypertension, a cardiac condition, peripheral vascular disease, stroke, or skin conditions. A contemporaneous VA eye conditions examination did, however, note ocular manifestations related to diabetes (i.e., diabetic retinopathy), and a VA male reproductive system conditions examination in November 2012 noted erectile dysfunction (ED) as secondary to his diabetes mellitus. An additional VA diabetes mellitus examination was afforded in April 2015. As with the previous VA examination in 2012, the examiner determined that the Veteran's diabetes was managed by a restricted diet and prescribed insulin, but not a physician-required regulation of activities for VA purposes. The Veteran was again noted to visit his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month, with no hospitalizations. As to complications, the examiner noted that the Veteran did have peripheral neuropathy as secondary to his diabetes, manifesting as mild incomplete paralysis of the sciatic nerve, bilaterally. Based on the foregoing, in the April 2015 rating decision that is currently on appeal, the RO awarded separate 10 percent ratings for peripheral neuropathy as secondary to the Veteran's diabetes. As the Veteran's ED and retinopathy were found to be noncompensable in severity, separate ratings were not awarded, and the Veteran's disability was recharacterized as "diabetes mellitus, type II (herbicide) with nonproliferative diabetic retinopathy, right eye (claimed as decreased vision), and erectile dysfunction." Thereafter, the Veteran filed a timely notice of disagreement with the continuance of his 20 percent rating. The Board notes that, while he also challenged the effective date of his peripheral neuropathy ratings, the Board granted that claim in its previous decision and it is no longer on appeal. Finally, pursuant to the Board's previous remand, an additional VA examination was afforded in January 2020. Again, however, the examiner determined that the Veteran's diabetes did not require a regulation of activities as a part of the medical management of his disabilities. A contemporaneous VA examination for the purpose of assessing the severity of his associated ED does not suggest, nor has the Veteran asserted, deformity of the penis. A VA eye examination also notes that his diabetic retinopathy is asymptomatic. The Veteran's remaining medical treatment records during the appeal are not in significant conflict with the above. Thus, based on the foregoing, entitlement to the next higher, 40 percent rating must be denied, as any regulation in activity is not due to changes in blood sugar levels or hypoglycemia with increased activity where activity needs to be restricted to avoid sudden drops in blood sugar. 38 C.F.R. § 4.119, Diagnostic Code 7913. While the Board acknowledges the Veteran's restricted lifestyle, again, for VA purposes, he also has additional peripheral neuropathy disabilities for which service connection has been awarded and separately rated, the ratings for which are not on appeal. Of particular note, several of the Veteran's medical records indicate that he has been counseled on the importance of regular exercise and/or physical activity as tolerated. Further, while the Veteran's ED and retinopathy are not separately rated but are instead rated along with the 20 percent rating for his diabetes, the evidence is against a finding that these associated conditions are compensable in severity. Specifically, the Veteran does not have a deformity of the penis (38 C.F.R. § 4.115b, Diagnostic Code 7522), or a compensable level of visual impairment or incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months (38 C.F.R. § 4.79, Diagnostic Code 6040). In sum, the evidence is against a finding that the severity of the Veteran's diabetes mellitus warrants a rating higher than 20 percent, and the claim for an increased rating must be denied. 38 C.F.R. §§ 4.1, 4.3. The Board is sympathetic to the Veteran's lay statements that his disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.