Citation Nr: 22016137 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-52 151 DATE: March 21, 2022 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's diabetes mellitus requires an oral hypoglycemic agent, daily use of insulin and regulation of diet for control, but does not require regulation of activities. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter has previously been before the Board, in November 2019 and September 2021. The Board remanded the matters in 2019 in order to obtain updated examinations for the Veteran's diabetes and address his reports of complications. The Board remanded the matters in 2021 in order to allow the Agency of Original Jurisdiction to (AOJ) to address newly received evidence in the first instance. As the record reflects that the Veteran has been afforded updated VA examinations addressing his diabetes and claimed complications, and the AOJ has reviewed the newly added evidence and issued a Supplemental Statement of the Case (SSOC), the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus The Veteran has been assigned a 20 percent rating for his diabetes mellitus pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. VA received his claim for an increased rating on March 31, 2015. Under 38 C.F.R. § 4.119, Diagnostic Code 7913, diabetes mellitus type II requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus type II requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Diabetes mellitus type II 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, is rated 60 percent disabling. Diabetes mellitus type II 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 either progressive loss of weight and strength or complications that would be compensable if separately evaluated, is rated 100 percent disabling. Id. The rating schedule in Note 1 also instructs to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. The criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive (i.e., each level of increase in the rating requires that additional criteria to those for the lower rating must be met to warrant the increase). See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). As relevant here, the Veteran was afforded VA examinations for his diabetes mellitus in July 2015, September 2018 and January 2021. The examiners noted that the Veteran's treatment for the condition included prescribed oral hypoglycemic agents and insulin. The September 2018 VA examiner also noted that the Veteran's treatment included a restricted diet. None of the examiners indicated that the Veteran required regulation of activities as part of the medical management of his diabetes mellitus. VA treatment records confirm that the Veteran is on a restricted diet as part of his diabetes therapy. The Veteran submitted lay statements indicating that his VA physician recommended diet, exercise and insulin twice a day to treat his diabetes. The Veteran testified at a September 2019 Board hearing that his doctor has not told him he should not engage in physical activities. Based on the foregoing, the criteria for a rating in excess of 20 percent for the Veteran's diabetes mellitus are not met. While the Veteran takes insulin and oral medication for his diabetes and has a restricted diet, the record does not reflect that he has been medically directed to regulate his activities. The Board has considered the Veteran's testimony that his inability to engage in certain activities is a regulation of activities. While the Veteran is competent to report symptoms because this requires only personal knowledge, he is not competent to identify a specific level of his disability of his disorder according to the appropriate diagnostic codes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Also, while the Veteran may choose to limit his activities, the clinical evidence does not establish that doing so is medically necessary. As noted by the Veteran, he has not been told to avoid activities by his physician. Competent evidence concerning the nature and extent of the Veteran's diabetes mellitus has been provided by the examiners, who directly addressed the criteria under which diabetes is evaluated and concluded that the Veteran was not required to regulate his activities as part of the medical management of his diabetes. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, the medical evidence of record is more probative than the Veteran's subjective complaints of increased symptomatology. The Board has also considered whether the Veteran is entitled to separate evaluations for diabetic complications of peripheral neuropathy and diabetic retinopathy. Based on a review of the competent medical and lay evidence, the Board finds no basis to conclude that the Veteran experiences these or any other diabetic complications. The July 2015, September 2018 and January 2021 VA examinations did not list any diabetic complications. The Veteran and his wife testified at the Board hearing that he had problems with his eyes and that he had numbness in his left arm. The Veteran also submitted a lay statement relating that he had numbness in his arm and hand and was a fall risk, with an inability to walk or stand for periods. VA treatment records do not document a diagnosis of peripheral neuropathy and reflect that the Veteran consistently denied any numbness in his extremities. The Veteran was afforded a VA examination for peripheral neuropathy in January 2021. The Veteran reported that he sometimes felt tingling and numbness in his left arm, related to when he slept on his left side. The Veteran reported that the numbness and tingling would go away with massage and denied having any symptoms in his right arm or either lower extremity. The Veteran was noted to have full strength and normal light touch, position sense, vibration sensation and cold sensation, with no muscle atrophy. The examiner also noted no trophic changes. The examiner concluded that the Veteran did not have a diagnosis of peripheral neuropathy based on the lack of documentation in the file and the Veteran's denial of symptoms other than occasional left arm tingling associated with his sleeping position. Based on the foregoing, the Board finds no basis to conclude that a separate evaluation for peripheral neuropathy is warranted. The Veteran was afforded a VA examination for his eyes in March 2021. The examiner noted that the Veteran had diagnoses of cataracts, Horner's syndrome and Pavingstone degeneration. The Board notes that the Veteran is service connected for Horner's syndrome. The examiner determined that the Veteran did not have diabetic retinopathy. The examiner also noted that the Veteran's Pavingstone degeneration was likely a hereditary condition unrelated to trauma or diabetes. The Board acknowledges the Veteran's report that he had eye problems and numbness in his left arm, and an inability to stand or walk for prolonged periods. The Veteran is competent to report these symptoms, but there is no indication that he has the qualifications to relate his symptoms to his diabetes. Moreover, the objective medical evidence reflects that the Veteran's does not have peripheral neuropathy or diabetic retinopathy. As noted, the Veteran consistently denied numbness in his extremities except for left arm numbness related to his sleeping position. The Board finds that the competent medical evidence outweighs the Veteran's contentions that he is entitled to separate evaluations for peripheral neuropathy and diabetic retinopathy as complications of his diabetes mellitus. The Board also finds no basis for the Veteran's contention that his Pavingstone degeneration is related to diabetes as the competent medical evidence reflects that the condition is hereditary and unrelated to diabetes. Based on the foregoing, the Board concludes that a rating in excess of 20 percent is not warranted for diabetes mellitus. Accordingly, the claim for an increased disability rating is denied. As the preponderance of the evidence weighs against the claim (that is to say, the weight of the evidence is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable. See Lynch v. McDonough, 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021); see also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND TDIU The Veteran's service-connected diabetes does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, at the Board hearing and in his lay statements, the Veteran has reported that his need for insulin prevents him from working in his usual occupation as a commercial truck driver. The Veteran testified that he has spent his career as a truck driver and is currently unemployed. Based on the foregoing, the Veteran's claim for a TDIU is being remanded and referred to VA's Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.