Citation Nr: 21042604 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-11 508 DATE: July 13, 2021 ORDER Entitlement to a rating higher than 20 percent for type II diabetes mellitus prior to February 26, 2014 is denied. However, a higher 40 percent rating, though no greater, is granted for the type II diabetes mellitus from February 26, 2014 onward. FINDINGS OF FACT 1. Prior to February 26, 2014, the Veteran's type II diabetes mellitus required restricted diet and one or more daily injection of insulin but not regulation of activities. 2. But since February 26, 2014, his type II diabetes mellitus has required a restricted diet, one or more daily injections of insulin, and regulation of activities; however, he has not had 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. CONCLUSIONS OF LAW 1. Prior to February 26, 2014, the criteria are not met for entitlement to a rating higher than 20 percent for the type II diabetes mellitus. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC/Code) 7913. 2. But effectively since February 26, 2014, the criteria have been met for a higher 40 percent rating, though no greater, for the type II diabetes mellitus. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Air Force from June 1966 to April 1970. This appeal to the Board of Veterans' Appeals (Board) is from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of this claim during a hearing in March 2020 before a Veterans Law Judge of this Board. Unfortunately, a transcript is not of record due to audio malfunctions during the hearing. However, in September 2020, the Veteran resultantly was notified that he could have another hearing before this Board, and he declined. Moreover, in April 2021, the Board also sent him notice that the Judge who had presided over the prior hearing was no longer employed by the Board since having retired. So, in accordance with 38 C.F.R. § 19.3(b), the Veteran was given still additional opportunity to have another hearing before a different Judge who ultimately would decide this appeal. The Veteran again did not respond, however. As such, this appeal has been reassigned to the undersigned Judge for disposition. 1. Entitlement to a rating higher than 20 percent for the type II diabetes mellitus prior to February 26, 2014 is denied. 2. However, a higher 40 percent rating, though no greater, conversely is granted for the type II diabetes mellitus from February 26, 2014 onward. The Veteran contends that he is entitled to a higher rating because his diabetes requires regulation of his activities meaning in addition to the restricted diet and insulin he takes to manage it. He says he was placed on work restrictions due to concerns related to hypoglycemia and glucose management, therefore, is entitled to a higher 40 percent rating. As will be discussed, the Board finds that he is entitled to this higher rating though no greater rating, beginning on February 23, 2014. This is the effective date of this higher rating because this is the first date that it is shown he is entitled to this higher rating. See Harper v. Brown, 10 Vet. App. 125 (1997) (if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (i.e., date entitlement arose) is the effective date of the increase in compensation according to 38 C.F.R. § 3.400(o)(1)). DC 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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 when diabetes requires 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). Because DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). Prior to February 26, 2014, the Board finds that the Veteran's type II diabetes mellitus required restricted diet and insulin, but not also regulation of his activities. This is evidenced in his evaluation and treatment records and in the report of a July 2013 Disability Benefits Questionnaire (DBQ), which also indicated that his diabetes did not impact his ability to work. As well, earlier treatment records also note that, in August 2010, he was continuing to perform strenuous physical work and did not experience symptoms of hypoglycemia. However, the Board sees that a written report from the Veteran's treating physician was received by VA on February 26, 2014 in which this physician indicated the Veteran had been placed on work restrictions owing to the strenuous nature of his job as a tree trimmer. This is corroborated by later treatment records dated in November 2016 in which his doctor discussed the exercise plan and advised the Veteran to check his "BGs" (blood glucose levels) both before and after exercising. It further was noted that he was working with a physical trainer to ensure appropriate workouts and, in September 2016, so just some two months earlier, an additional report was submitted by his primary care provider affirming the Veteran was restricted at work from performing strenuous activity owing to his diabetes and, specifically, his risk of developing hypoglycemia while working at higher elevations trimming trees. This doctor outlined safety concerns of the Veteran possibly fainting or becoming dizzy while performing strenuous physical labor in that capacity and resultantly falling and sustaining serious injury. The record does not indicate, however, that the Veteran has experienced 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. Regarding the latter, he has separate 10 percent ratings for the associated complication of diabetic neuropathy of his left and right lower extremities. Moreover, although another complication namely, his erectile dysfunction, is rated along with rather than apart from the underlying diabetes, he is receiving special monthly compensation (SMC), so a higher rate of monthly compensation, under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. Accordingly, while the preponderance of the evidence is against assigning a rating exceeding 20 percent prior to February 26, 2014, the Board finds the Veteran is entitled to higher 40 percent rating though no greater, from that date onwards because the record indicates his diabetes additionally has required what amounts to regulation of activities, especially at his job as a tree trimmer. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.