Citation Nr: 21030132 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-35 587 DATE: May 17, 2021 ORDER A rating in excess of 20 percent for type 2 diabetes mellitus (DM) is denied. FINDING OF FACT The Veteran's diabetes mellitus disability required treatment with insulin or oral medication, and a restricted diet, but does not require regulation of activities during any portion of the period on appeal. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to December 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in November 2018, when it was remanded for further development. Increased Rating Claim for DiabetesLaws and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's service-connected type II diabetes mellitus is currently assigned a 20 percent evaluation pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 7913. The Board notes that the Veteran is currently in receipt of separate ratings for his diabetes-related disabilities, including upper and lower bilateral peripheral neuropathy and bowel dysfunction. He is also receiving special monthly compensation for loss of use of a creative organ due to erectile dysfunction related to his diabetes. The symptoms related to those disabilities cannot be considered in evaluating the level of disability due to diabetes mellitus. See 38 C.F.R. § 4.14 (pyramiding, or rating the same manifestation under different diagnoses, is to be avoided). Under Diagnostic Code 7913, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent disability evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability evaluation is warranted for diabetes mellitus requiring insulin, a restricted diet, and 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. A 100 percent evaluation is contemplated for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated. The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). Successive rating criteria, such as Diagnostic Code 7913, is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected type II diabetes mellitus. At the outset, the Board acknowledges that the Veteran's diabetes mellitus has required the use of insulin, prescribed or hypoglycemic agents and a restricted diet for control, thus warranting the currently assigned 20 percent rating. What is still in question, however, is whether the Veteran's diabetes mellitus required the regulation of activities, as would be necessary to warrant an increase of the disability evaluation to 40 percent or higher. A May 2012 treatment notes that the Veteran was encouraged to track his current level of exercise and advised on how beneficial that was to his DMII and overall health. A June 2013 treatment notes that the Veteran was advised to redouble his efforts to manage his diet, and to return to regular physical exercise. An October 2013 treatment notes that the Veteran was paying increased attention to diet and exercise, is taking his medication consistently. An April 2015 letter from the Veteran's provider Dr. D.B. notes that the Veteran was treated with insulin and restricted diet. Although Dr. D.B. notes that the Veteran's neuropathy restricts his ability to walk steps and/or any long distance, his actives are not regulated as part of medical management of DMII. In May 2015, the Veteran was counseled about the importance of low cholesterol diet, weight and exercise. A May 2016 treatment notes that the Veteran reported he bikes, lift weights and goes to the Arnold recreational center for exercising. An October 2016 treatment notes that the Veteran reported that he does exercises 3-5 days a week and lifts weights. A June 2018 treatment notes that the Veteran goes to the gym to exercise 4 times a week and feels good. In April 2019, he was encouraged to diet and exercise towards lowering his blood sugar. In July 2019, the Veteran reported to his treating physician that he was trying to "exercise and watch his diet to lose weight and diabetes" . The Veteran was afforded VA examinations for his diabetes mellitus in August 2014 and in December 2019. Both VA examiners indicated the Veteran did not require to regulate activities as part of medical management of diabetes mellitus. Throughout the appeal period, the Veteran's diabetes mellitus has not required regulation of activities for control. Thus, the preponderance of the evidence is against the claim. There is no doubt to be resolved, and an increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Asare, Associate 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.