Citation Nr: 21031171 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-28 918A DATE: May 20, 2021 ORDER Entitlement to an increased disability evaluation for diabetes mellitus, Type-II, initially rated as 20 percent disabling, is denied. FINDING OF FACT The Veteran's Type-II diabetes mellitus requires an oral hypoglycemic agent and restricted diet, but not regulation of activities. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for Type-II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1969 to April 1970 and from April 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. In September 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in November 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased disability evaluation for diabetes mellitus, Type-II, initially rated as 20 percent disabling. The Veteran's Type-II diabetes mellitus is rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. According to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet, or hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, 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 rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). In this case, the evidence reflects that the Veteran's diabetes mellitus requires an oral hypoglycemic agent and a restricted diet. The dispositive question is therefore whether it also requires regulation of activities. The Board finds that it does not. At the most recent November 2016 VA examination, the VA examiner noted, after examining the Veteran and reviewing the claims file, that the Veteran's diabetes was treated by restricted diet and oral hypoglycemic agents. Although the VA examiner checked the box indicating that the Veteran's diabetes mellitus required regulation of activities as part of medical management, in the VA examiner's explanation of how the Veteran must regulate his activities, the VA examiner answered that the Veteran took metformin; the VA examination report did not reflect that the Veteran avoided any activities due to his diabetes mellitus. Likewise, the Board observes that treatment records indicate that the Veteran's diabetes mellitus is well controlled without regulation of activities, and that his diabetes mellitus has remained stable during the rating period on appeal. The Veteran has not needed to regulate his physical activities and has not lost any body weight due to diabetes mellitus during the appeal period. The VA examiner observed that the Veteran has not experienced progressive unintentional weight loss or loss of strength due to his diabetes mellitus, and that the Veteran does not experience any complications or secondary conditions as a result of his diabetes mellitus. Additionally, the Board observes that the Veteran, in his notice of disagreement, did not allege that his diabetes mellitus was worse than evaluated. The Veteran asserted that he might be entitled to separate evaluations for erectile dysfunction and peripheral neuropathy; the Board observes that the Veteran was provided with an application for benefits so that he could file a claim for secondary service connection, but that he did not do so and as noted earlier, the VA examination report reflects that the Veteran did not experience any secondary conditions. Moreover, in a November 2020 Report of Contact with the RO, the Veteran declined another VA diabetes mellitus examination, and indicated that he was satisfied with his current disability rating. As such, the Board finds that the medical evidence does not support a finding of "avoidance of strenuous occupational and recreational activities." The Veteran did not indicate that any physician had told him to regulate his activities due to his diabetes mellitus, and the Veteran's VA treatment records do not reflect that any of his treating providers told him to regulate his activities due to his diabetes mellitus. The Board acknowledges the Veteran's contentions that his diabetes mellitus has worsened since it was initially diagnosed in 1970. However, the weight of the evidence is against a finding that the Veteran's diabetes mellitus requires regulation of activities. As the higher ratings all require regulation of activities, the preponderance of the evidence is against a rating higher than 20 percent for the Veteran's diabetes mellitus, Type II. The benefit of the doubt doctrine is thus not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hallie E. Brokowsky, 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.