Citation Nr: 22014571 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-28 506A DATE: March 14, 2022 ORDER Entitlement to an increased rating greater than 20 percent for diabetes mellitus, type 2 (DM II) is denied. FINDING OF FACT The Veteran's DM II has not required regulation of activities. CONCLUSION OF LAW The criteria for an increased rating greater than 20 percent for DM II 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 (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to April 1969. This case comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased rating greater than 20 percent for DM II. In April 2016 the Veteran filed a notice of disagreement (NOD) and in May 2018 the RO issued a statement of the case (SOC). In June 2018 the Veteran filed a substantive appeal (via VA Form 9). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). DM II The Veteran's DM II is currently rated 20 percent disabling under 38 C.F.R. § 4.119, DC 7913. Under DC 7913, a 20 percent rating is warranted where the DM II requires one or more daily injection of insulin and restricted diet, or hypoglycemic agent and restricted diet. A 40 percent rating is warranted for DM II requiring one or more daily injection of insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for DM II requiring 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 for DM II 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. For VA purposes "regulation of activities" means physician-directed avoidance of strenuous occupational and recreational activities in an effort to control diabetic complications. It specifically excludes supervised and professionally directed exercise, which, along with a restricted diet, is intended to improve the health of the diabetic patient. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating 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). A March 2016 VA examiner noted that the Veteran requires more than 1 injection of insulin per day and that he treats his DM II with a prescribed oral hypoglycemic agent. The VA examiner noted that the Veteran manages his DM II with a restricted diet and does not require regulation of activities as part of his medical management of diabetes. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month. The Veteran was not hospitalized for episodes of either ketoacidosis or hypoglycemia over the past 12 months. The VA examiner noted that the Veteran's DM II does not impact his ability to work. An October 2016 VA treatment note indicates that the Veteran works out 5 days a week "religiously." On the June 2018 VA Form 9 the Veteran noted his daily insulin injections, restricted food intake, intake of large pills, lack of consumption of alcohol, and increased neuropathic pain, and his participation in a health club five days per week. Based on the foregoing, the Board finds that a rating greater than 20 percent is not warranted at any time throughout the appeal period. The Veteran works out regularly and his medical records do not demonstrate that he regulates his activities or that his DM II impacts his ability to work. The Board emphasizes that the rating criteria are successive and the determination of entitlement to a rating greater than 20 percent turns on a finding that the Veteran's DM II requires regulation of activities. Medical evidence of such a restriction is required for an increased rating which was not found in his VA treatment records or noted on the March 2016 VA examination. The Board appreciates the symptoms recounted by the Veteran, but those symptoms are contemplated by the 20 percent rating he is receiving for diabetes as well as the 20 percent ratings he is receiving for peripheral neuropathy of each extremity. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased rating greater than 20 percent for DM II is warranted. Rather, the evidence persuasively weighs against the Veteran's claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Miller, 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.