Citation Nr: 22017992 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 17-44 522 Look at Orgcam my eye DATE: March 27, 2022 ORDER Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus type II is denied. FINDING OF FACT For the entire period on appeal, the Veteran's diabetes mellitus type II required an oral hypoglycemic agent, insulin, and restricted diet, but has not been characterized by requiring regulation of activities. CONCLUSION OF LAW The criteria for entitlement for a disability rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. § 1110, 1131, 1153, 5107(b); 38 C.F.R. § 3.304, 3.306, Diagnostic Code 7913. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This matter was previously before the Board in September 2021, wherein the Board remanded for a new VA examination. The matter has returned to the Board for adjudication. The Veteran contends that his diabetes mellitus type II warrants a higher evaluation than the currently assigned evaluation of 20 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. §§ 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. §§ 4.3. When, 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). Nevertheless, staged ratings are also appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. Diagnostic Code 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 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. The next-higher 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational 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, the maximum available, 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, Diagnostic Code 7913 (Note 1). Where the schedular criteria does not provide for a noncompensable rating, such a rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that separate but associated ratings have been assigned for complications related to the Veteran's diabetes mellitus type II, as will be discussed below. Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). Although VA regulations under 38 C.F.R. § 4.7, 4.21 generally provide that the symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, those regulations do not apply where the rating schedule establishes successive criteria. By way of background, the Veteran applied for an increase in his evaluation for diabetes mellitus type II in November 2015. The 20 percent evaluation for the diabetes mellitus was continued in a January 2016 rating decision. The RO also denied service connection for diabetic neuropathy of the right and left upper extremities and right and left lower extremities. The Veteran appealed this decision. These conditions were subsequently granted in in an October 2017 rating decision and are no longer on appeal. In October 2017, the Veteran was also granted service connection for diabetic nephropathy and Dupuytren's contracture for the index, long, ring, and little right and left fingers as secondary to his service-connected diabetes mellitus. As he has not expressed disagreement with the evaluations of these conditions, the Board finds that these issues are not on appeal. Here, the Veteran's diabetes mellitus type II has been rated as 20 percent disabling throughout the claim and appeal period. In order to warrant a 40 percent, additional symptoms must be shown, like regulation of activities which is defined as avoidance of strenuous occupational and recreational activities. This level of disability or more has not been demonstrated by the evidence of record. Turning to the evidence of record, the Veteran was afforded a VA diabetes mellitus examination in December 2015. The examiner indicated that the Veteran's treatment consisted of a restricted diet, oral hypoglycemic agent and one injection of insulin per day. The examiner noted that the Veteran does not require the regulation of activities as part of his medical management of diabetes mellitus. The examiner found that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month and there were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations over the past twelve months. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. A July 2016 VA treatment record shows that the Veteran's insulin had to be increased and he was to cut carbohydrates in his diet. A February 2017 VA treatment record notes that his insulin had to be increased to 44 units from 40 units. The Veteran stated in September 2018 that for exercise, he stays active most days of the week with mowing, yardwork, gardening, hunting, fishing, walking, and working on the farm. See September 2018 VA treatment record. In another September 2018 VA treatment record, the Veteran reported that regarding his diabetes mellitus, he feels that his numbers are improving, as he continued to make dietary and lifestyle changes. The Veteran stated in an October 2018 VA treatment record that he had one low glucose value but was unable to give any other details of the event. He did not have any other concerns and did not have many glucose values to report. In February 2019, the Veteran did not report any low blood glucose. See February 2019 VA treatment record. An April 2019 VA treatment record showed that the Veteran's current diabetes mellitus medications included Lantus 48 units twice daily and metformin 1,000 mg twice daily. The pharmacist noted that his overall readings are in a good range at this time and will continue his current dose of medication. In February 2020, the Veteran's medication had to be decreased slightly due to hypoglycemia. See February 2020 VA treatment record. In an August 2020 VA treatment record, the Veteran denied unexplained weight loss. It was also noted that he has been taking metformin 1,000 mg twice daily and insulin glargine 100u/ml 50 units twice daily with insufficient control, possibly due to non-adherence issues with insulin. Later that month, the Veteran was prescribed Ozempic, a non-insulin injectable for adults with diabetes mellitus type II. He was advised that along with diet and exercise and given the Ozempic once a week may improve his blood sugar. See August 2020 A treatment record. Another August 2020 VA treatment record noted that the Veteran was to continue with his diabetic diet. In January 2021, the Veteran reported that he has not experienced any signs or symptoms of hypoglycemia since his last visit. See January 2021 VA treatment record. A February 2021 VA treatment record documents that the Veteran reported that his glucose has been more stable recently, with no recent signs or symptoms of hypoglycemia. In March 2021, the Veteran reported that he can climb a flight of stairs without issue. See March 2021 VA treatment record. In an April 2021 Braden Scale Assessment, the treating physician noted that the Veteran had the ability to change and control his body positions and walks frequently. See April 2021 VA treatment record. Also, in an April 2021 VA treatment record, the Veteran was noted to be overweight, and his diet and exercise were discussed as he did not watch his diet very closely. Pursuant to the September 2021 Board remand instructions, the Veteran was examined for his diabetes mellitus type II in November 2021. The Veteran's diabetes mellitus type II was managed by restricted diet, oral hypoglycemic agent and more than one injection of insulin a day. The examiner specified that the Veteran did not require regulation of activities as part of the medical management of his diabetes mellitus. The examiner indicated that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month and there were no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations over the past twelve months. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The Veteran reported at the examination that he has hypoglycemia at night, and his wife reporting that this was the first low he has had for a long time. The Veteran also stated that he needs to take insulin three times a day with each meal but only takes it twice a day since he gets up late and does not eat breakfast and that he is not on any sort of schedule. The examiner noted that the Veteran had poorly controlled diabetes due to the Veteran's lack of schedule since the time he goes to bed varies, the time he gets out of bed in the morning varies, and the time he eats lunch and dinner varies. In a December 2021 VA treatment record, it was noted that the Veteran had a history of noncompliance with medications and diabetic diet. The Veteran was advised in healthy eating and daily activities to tolerance and was willing to work to get his glucoses down. Based on the evidence of record, the Board finds that the Veteran's diabetes mellitus type II required only restricted diet, an oral glycemic agent, and required the use of insulin to manage his condition, during the period on appeal. There were no medical findings of a physician regulating the Veteran's activities other than what was discussed above. The evidence shows that the Veteran was encouraged to watch his diet and exercise, as opposed to regulate his activity. There was no medical need for the Veteran to avoid strenuous occupational and recreational activities based on his diabetes mellitus. The Veteran is competent to report a general worsening of his condition and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical evidence of record is against a finding that the Veteran required a regulation of activities during the period on appeal to meet the next-higher criteria of a 40 percent disability rating. In summation, at no time during the period on appeal does the Veteran's diabetic condition warrant a rating greater than 20 percent pursuant to Diagnostic Code 7913. The Veteran's diabetes does require daily insulin, hypoglycemic agents, and a restricted diet, but the evidence does not indicate a restriction of activities or frequent hospitalizations or bimonthly treatment visits due to hypoglycemic reaction or ketoacidosis. While the Veteran did report instances of hypoglycemia, there is no evidence that the hypoglycemia required additional periods of hospitalization, or bimonthly treatment visits for hypoglycemic reactions. Additionally, as previously stated above, Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria and each higher rating includes the same criteria as the lower rating plus distinct new criteria. In this case, as the Veteran does not meet the requirements for a 40 percent evaluation because there is no restriction of activities, he cannot meet the higher 60 percent evaluation as he has not met all the criteria for a 40 percent evaluation, which is the next higher evaluation than the currently assigned 20 percent. As a final matter, there is no evidence that the Veteran's diabetes mellitus type II from the period one year before the claim was filed, showed that he required a restriction of activities, frequent hospitalizations or bimonthly treatment visits due to hypoglycemic reaction or ketoacidosis. As the Veteran is not found to require regulation of activities in addition to his restricted diet and daily insulin injection and hypoglycemic medications, the criteria for a 40 percent rating for diabetes mellitus type II is not met. Accordingly, the evidence of record is persuasively against a finding of assigning a rating in excess of 20 percent for service-connected diabetes mellitus type II. Therefore, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.