Citation Nr: 22016240 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 20-11 823 DATE: March 21, 2022 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus type II (DMII) is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for lumbosacral strain, with arthritis and osteoporosis, is remanded. FINDING OF FACT The Veteran's DMII required only one or more daily injection of insulin during the period on appeal. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for DMII are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b). Entitlement to a disability rating in excess of 20 percent for DMII The Veteran seeks a higher rating for his service-connected DMII. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this case, the Board reviews the evidence of record since April 2016, which is one year before the April 2017 intent to file was received by VA. The Veteran's DMII has been rated under 38 C.F.R. § 4.119, DC 7913, for diabetes mellitus. Under DC 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring insulin, a 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 maximum 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, a 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. 38 C.F.R. § 4.119, DC 7913. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Having carefully considered the evidence and applicable law, the Board finds that the criteria for a rating in excess of 20 percent are not met. At a March 2018 VA examination it was noted that the Veteran's DMII is managed by prescribed oral hypoglycemic agents and more than one insulin injection per day. The examiner also found that the Veteran visited his diabetic provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia and that no hospitalizations for episodes of ketoacidosis or hypoglycemia were required. It was also noted that the Veteran's DMII did not affect work. Also, a review of VA treatment records does not provide any findings supporting an increased rating. The reports show that the Veteran was consistently monitored, prescribed insulin, and educated on lifestyle changes. The reports do not reference any medically restricted activities because of his diabetes mellitus. In consideration of the above, the Board finds that the evidence does not sufficiently establish that the Veteran's DMII results in regulation of activities, which is a necessary criterion for a rating in excess of 20 percent for diabetes. 38 C.F.R. § 4.119; DC 7913. The Board acknowledges that the Veteran believes his DMII warrants a higher disability rating. However, as noted, the Veteran's DMII does not require regulation of activities and there is no evidence of record suggesting such. Under DC 7913, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component was not met at any one level, the veteran could only be rated at the level that did not require the missing component. Because "regulation of activities" has not been established, the Veteran is not entitled to a disability rating of 40 percent, 60 percent, or 100 percent. Camacho, 21 Vet. App. at 366-367. Pursuant to Note (1) under DC 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; DC 7913, Note (1). Here, the Board notes that the Veteran was already separately service-connected for erectile dysfunction and bilateral lower extremity peripheral neuropathy, associated with his DMII. No other complications related to his diabetes have been diagnosed. Absent evidence that the Veteran's DMII requires regulation of activities, the Board finds that the criteria for a rating greater than 20 percent are not met. See 38 C.F.R. § 4.119, DC 7913. The Board concludes the evidence is persuasively against the claim for an increased rating for DMII and there is no doubt to be otherwise resolved. As such, the appeal is denied. REASONS FOR REMAND Entitlement to a disability rating in excess of 20 percent for lumbosacral strain, with arthritis and osteoporosis While the Board regrets the delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide his appeal. The Veteran contends that his lumbar disability symptomatology warrants a rating higher than the 20 percent evaluation that is currently assigned. The Veteran was afforded a VA back examination in March 2018 during which the VA examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's reporting of functional loss with repeated use over time, to include pain, weakness, fatigability, incoordination, or range of motion. The VA examiner claimed that there was no conceptual or empirical basis of making such determinations without directly observing function under these conditions. The Board finds that the March 2018 VA examination is insufficient for rating purposes because it does not provide the required information regarding functional limitations caused after repeated use over time. The Board emphasizes that, although a VA examination may not be conducted immediately after repeated use over time, the holding of the United States Court of Appeals for Veterans Claims in Sharp v. Shulkin, 29 Vet. App. 26 (2017) provides that VA examiners should elicit information from the claimant regarding the condition of the relevant joint during such circumstances. Id. at 34. The VA examiner must then estimate the Veteran's "functional loss based on all the evidence of record, including the Veteran's lay information, or explain why he or she could not do so." Id. at 33. In this case, the VA examiner did not attempt to elicit relevant information regarding the description of any additional functional loss experienced with repeated use over time. Rather, the examiner stated that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. However, it is not apparent why the examiner could not estimate additional functional loss or additional loss of range of motion based on the Veteran's statements, or why the available information in the Veteran's claims folder was not sufficient to permit such an estimate. As this rationale is legally inadequate, remand for a new examination is warranted. Additionally, the record indicates that there are outstanding private medical treatment records which may be relevant to the Veteran's claim. Specifically, in undated private medical treatment records received by VA in July 2018, the Veteran reported private back treatment from April 2017 to October 2017 that are not of record. On remand, the RO should attempt to obtain these records. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for his back disability. In particular, request the Veteran to provide any private treatment records from Holly Medical Center, Burlington, NJ, and Regional Orthopedic Professional Association, Cherry Hill, NJ. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain any outstanding VA treatment records, if any. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After the above development has been completed, schedule the Veteran for a VA examination with an appropriate examiner to ascertain the current nature and severity of the Veteran's lumbar disability. All necessary tests should be conducted. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinion(s), and such review should be noted in the examination report. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's lumbar disability under the rating criteria, including all objective neurologic impairments. (b.) The examiner should describe any pain, weakened movement, excess fatigability, and lack of incoordination present. (c.) Range of motion testing must include testing in active motion, passive motion, and pain with weight-bearing and without weight-bearing. (d.) Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide complete explanations stating why this is so. In so doing, the examiner must explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (e.) The examiner should also comment on the functional impairment caused by the Veteran's lumbar disability. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. All opinions are to be accompanied by a rationale consistent with the evidence of record. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.