Citation Nr: 21040644 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 08-17 127 DATE: July 6, 2021 ORDER A disability rating in excess of 40 percent for diabetes mellitus from May 25, 2005 is denied. A disability rating for degenerative joint disease of the lumbar spine, in excess of 20 percent from November 30, 2005, and in excess of 40 percent from January 22, 2020, is denied. FINDINGS OF FACT 1. For the entire period on appeal from May 25, 2005, the diabetes mellitus has been manifested by a requirement of one or more daily injections of insulin, restricted diet, and regulation of activities, but no episodes of ketoacidosis or hypoglycemic reactions. 2. For the period on appeal from November 30, 2005 to January 22, 2020, the degenerative joint disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine to greater than 30 degrees but not greater than 60 degrees. 3. For the period on appeal from January 22, 2020, the degenerative joint disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from May 25, 2005, the criteria for a disability rating in excess of 40 percent for the diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. For the rating period on appeal from November 30, 2005 to January 22, 2020, the criteria for a disability rating in excess of 20 percent, and for the rating period on appeal from January 22, 2020, the criteria for a disability rating in excess of 40 percent, for the degenerative joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was initially service connected for the diabetes mellitus, rated at 20 percent, effective May 8, 2001, and for the degenerative arthritis of the lumbar spine, rated at 20 percent, effective September 1, 1992. In May 2005, the Veteran filed a claim for increased rating for the diabetes, and in November 2005 the Veteran filed a claim for increased rating for the lumbar spine disability. In April 2006, the 20 percent rating was continued for the lumbar spine, and the 20 percent was increased to 40 percent for the diabetes. See April 2006 Rating Decision. In April 2007, the Veteran filed a Notice of Disagreement with the 20 percent rating for the lumbar spine and the 40 percent rating for the diabetes. In July 2020, the 20 percent for the lumbar spine was increased to 40 percent for the period from January 22, 2020. The April 2006 Rating Decision is the basis of the current appeal. 1. Rating the Diabetes Mellitus For the entire rating period on appeal from May 25, 2005, the Veteran has been in receipt of a 40 percent rating for the diabetes mellitus based on diabetes requiring one or more daily injections of insulin, restricted diet, and regulation of activities. The Veteran contends that his diabetes has worsened: he has stated that he has had greater difficulty keeping his blood sugar level under control, requiring increased insulin intake. See April 2007 Notice of Disagreement. Under Diagnostic Code 7913 for diabetes mellitus, a 40 percent rating is warranted where the diabetes requires one or more daily injections of insulin, restricted diet, and regulation of activities. The next highest rating of 60 percent is warranted where the diabetes requires one or more daily injections of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalization per year to twice monthly visits to a diabetic care provider. After weighing all the evidence, lay and medical, the Board finds that the current diabetes more nearly approximates the criteria for a 40 percent rating under DC 7913. For the entire rating period on appeal, the lay and medical evidence shows that the diabetes mellitus has been manifested by a requirement of one or more daily injections of insulin, restricted diet, and regulation of activities, but no episodes of ketoacidosis or hypoglycemic reactions. VA examinations and medical treatment records from December 2005 to January 2020 do not show episodes of ketoacidosis or hypoglycemic reactions. At VA examinations in December 2005, February 2008, November 2015, and January 2020, the Veteran reported that he did not experience any episodes of ketoacidosis or hypoglycemic reactions. Medical treatment records do not show any hospital visit or diabetic care provider visits for episodes of ketoacidosis or hypoglycemic reactions. The Veteran has not claimed that he experiences any episodes of ketoacidosis or hypoglycemic reactions. Accordingly, a higher 60 percent rating under DC 7913 is not warranted. After a review of all the evidence of record, the Board finds that, for the entire rating period on appeal from May 25, 2005, the diabetes mellitus has been manifested by a requirement of one or more daily injections of insulin, restricted diet, and regulation of activities, with no episodes of ketoacidosis or hypoglycemic reactions. Accordingly, the Board finds that, for the entire rating period on appeal from May 25, 2005, the criteria for an increased disability rating in excess of 40 percent for diabetes mellitus are not met. 38 C.F.R. §§ 4.3, 4.7. 2. Rating the Degenerative Joint Disease of the Lumbar Spine For the rating period on appeal from November 30, 2005 to January 22, 2020, the Veteran is in receipt of a 20 percent rating for the degenerative arthritis of the lumbar spine based on limitation of motion of the thoracolumbar spine in forward flexion to greater than 30 degrees but not greater than 60 degrees. For the rating period on appeal from January 22, 2020, the Veteran is in receipt of a 40 percent rating based on limitation of motion of the thoracolumbar spine in forward flexion to 30 degrees or less. Spinal disabilities, including DC 5242, are rated under the General Rating Formula for Disease and Injuries of the Spine. Under the General Rating Formula, a 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The next highest rating for the thoracolumbar spine is a 40 percent rating. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. The Veteran has reported experiencing severe pain in the spine when lifting objects as light as 10 pounds. See April 2007 Notice of Disagreement. The Veteran has also reported difficulty walking long distances, as the back pain requires him to stop and catch his breath to deal with the pain. After weighing all the evidence, lay and medical, the Board finds that, for the period from November 30, 2005 to January 22, 2020, the degenerative joint disease of the lumbar spine more nearly approximates the criteria for a 20 percent rating. For this rating period, even with considerations of additional limitations of motion and function due to orthopedic limiting factors, the evidence does not show forward flexion of the thoracolumbar spine to 30 degrees or less. A VA examination report in February 2008 shows the range of motion of the spine, including in passive and active motion, with weight bearing and non-weightbearing, and accounting for repetitive use and flare-ups. At the most limited, the forward flexion of the thoracolumbar spine was limited to 45 degrees based on pain in both active and passive motion. The VA examiner did not find any evidence of ankylosis of the spine. In April 2009, the Veteran received a radiological examination. The examiner found no evidence of ankylosis of the lumbar spine. For the period from November 30, 2005 to January 22, 2020, a higher rating of 40 percent is not warranted because the evidence does not show that the thoracolumbar spine is limited in forward flexion to 30 degrees or less. While the Veteran has reported extreme pain in the back, the February 2008 examiner took this pain into account when measuring and assessing the ranges of motion of the spine. Accordingly, for this period, a higher rating of 40 percent is nor warranted. After weighing all the evidence, lay and medical, the Board finds that, for the period from January 22, 2020, the degenerative joint disease of the spine more nearly approximates a 40 percent rating. For this period, the evidence does not show unfavorable ankylosis of the entire thoracolumbar spine that is required for a higher 50 percent rating. The Veteran was examined by VA in January 2020. The examiner performed range of motion testing with active and passive movements, weight and non-weight bearing, and accounting for repetitive use and flare-ups. At the most limited, based on repetitive use, the forward flexion of the thoracolumbar spine was limited to 30 degrees. The examination showed no evidence of ankylosis. The Veteran's lay descriptions of limitations of motion and function due to back pain also do not describe ankylosis, and more specifically do not describe unfavorable ankylosis of the entire thoracolumbar spine. Applying the findings to the rating schedule, the disability more nearly approximates the criteria for a 40 percent rating, based on forward flexion limited to 30 degrees or less. As there is no evidence of ankylosis in the examination or in any other part of the record, a higher rating of 50 percent is not warranted. Even favorable ankylosis, were it present in this case, would still only warrant a 40 percent rating; the ankylosis would have to be unfavorable and affect the entire thoracolumbar spine to warrant a higher 50 percent rating. Accordingly, the Board finds that, for the rating period on appeal from November 30, 2005 to January 22, 2020, the criteria for an increased disability rating in excess of 20 percent are not met, and for the rating period on appeal from January 22, 2020, the criteria for an increased disability rating in excess of 40 percent for the degenerative joint disease of the lumbar spine are not met. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Charles Plambeck 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.