Citation Nr: 1761158
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 09-08 552 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II (herein diabetes).

(The issue of entitlement to service connection for hypertension is addressed in a separate Board decision; the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is addressed in a separate Board decision; the issue of entitlement to payment or reimbursement of private medical expenses is addressed in a separate Board decision.)

REPRESENTATION

Veteran represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

A. Purcell, Associate Counsel

INTRODUCTION

The Veteran served on active duty from July 1968 to July 1970.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the assigned 20 percent disability rating for diabetes.

The Veteran testified at an August 2010 Board hearing before the undersigned Veterans Law Judge in St. Petersburg, Florida. A transcript of the hearing is of record.

The Board remanded the Veteran’s claim in December 2012, September 2015, and August 2016.

FINDING OF FACT

Throughout the appeal period, the Veteran’s diabetes has required insulin and a restricted diet, with no regulation of activities as contemplated by the rating schedule.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for diabetes are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, DC 7913 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Disability ratings are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the 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.

Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007).

The Veteran is service-connected for diabetes, and is evaluated as 20 percent disabling, pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under that code, a 20 percent rating is assigned for diabetes requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet.

A 40 percent rating is appropriate when diabetes requires insulin, a restricted diet, and regulation of activities.

A 60 percent rating is provided for diabetes that requires 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.

The criteria for a 100 percent rating require 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.

The definition of “regulation of activities” in the criteria for a 100 percent rating, that is, the “the avoidance of strenuous occupational and recreational activities,” also applies to the “regulation of activities” criterion for a 40 or 60 percent rating under Diagnostic Code 7913. In addition, the criterion of “regulation of activities” requires medical evidence that occupational and recreational activities have been restricted by the diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2011). The term “must be understood as meaning that the avoidance is required to help control blood sugar.” See VBA Manual M21-1, III.iv.4.F.1.e (Information on Regulation of Activities).

The criteria for rating diabetes are cumulative, which means that each requirement for a given percentage must be shown, before that rating can be provided. Camacho v. Nicholson, 21 Vet. App. 360 (2007).

Note (1) to this rating code adds that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board notes that the Veteran has been awarded separate evaluations for diabetic peripheral neuropathy of the upper and lower extremities, diabetic nephropathy, diabetic gastroparesis, obstructive sleep apnea, and special monthly compensation for loss of use of a creative organ.

The Veteran’s claim for an increased rating for his service-connected diabetes was received March 5, 2008.

The record reflects that the service-connected diabetes has been treated with insulin and/or oral medications and restricted diet throughout the appeal period. See March 2008, June 2013, and November 2016 VA Examination Reports.

The evidence does not reflect, however, that diabetes has required regulation of activities as contemplated by the rating schedule. The March 2008 VA examiner noted that the Veteran reported that his diabetes did not affect his daily living activities. In a September 2008 statement, the Veteran reported that he was told not to engage in strenuous work or exercise. A June 2010 note from the Veteran’s doctor states that the Veteran had to “watch sugar level, avoid high impact” and a July 2010 note states that “due to his diabetes, [the Veteran] has been told not to do strenuous exercise, he can do low impact and moderate exercise.”

Notably, the June 2013 VA examiner addressed the July 2010 note, indicating that it was not clear why the doctor would indicate that the Veteran was told not to do strenuous exercise “due to his diabetes.” The VA examiner explained that the July 2010 clinician indicated that the Veteran experienced worse knee pain, but that his diabetes was doing well. Indeed, VA treatment records show the Veteran has ongoing bilateral knee problems, which contribute to limits on activity. The June 2013 VA examiner reviewed the Veteran’s lay statements and his medical treatment records, and opined that the Veteran’s diabetes does not require regulation of activities in order to maintain blood sugar control. The examiner further explained that the Veteran’s instructions in his treatment records were part of the usual management of diabetes and that the Veteran’s reported blood sugar level might indicate a need for medication adjustment, but was not a critically low value. While the examiner noted that the Veteran should not hold a dangerous job in which an inadvertent hypoglycemic episode would place the Veteran or others at major risk, such as working at extreme heights or piloting a plane, this appears to be a safety precaution rather than a way of avoiding aggravating the Veteran’s diabetes or an otherwise medically mandated restriction contemplated by the rating regulation. The November 2016 VA examiner confirmed that the Veteran does not require regulation of activities as part of the medical management of his diabetes.

The evidence as a whole does not show that the Veteran has been placed on medical restrictions from strenuous physical activities in an effort to control blood sugar at any time within the appeal period. Rather, the evidence shows that during the period under review, the Veteran’s physicians have specifically recommended that the Veteran exercise. See, e.g., June 2015, June 2014, and April 2013 VA Treatment Records (noting the Veteran regularly exercises and noting the benefits of regular exercise); July 2008 VA Treatment Record (noting the Veteran does not regularly exercise at a moderate level and counseling Veteran on benefits of regular exercise). The Veteran also testified that he engaged in exercise in an effort to help control his blood sugar. See August 2010 Board Hearing Tr., p. 9. As the medical evidence does not show that the Veteran’s diabetes required avoidance of strenuous occupational and recreational activities, as identified by a medical provider, an increased rating to 40, 60, or 100 percent is not warranted.

As noted above, compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran’s diabetic complications include diabetic peripheral neuropathy of all extremities, diabetic nephropathy, diabetic gastroparesis, and obstructive sleep apnea. Each of these disabilities has already been recognized by the RO as a complication of diabetes, and has been separately rated. The Veteran also has erectile dysfunction associated with diabetes; however, a separate compensable rating is not available for erectile dysfunction, as erectile dysfunction without penile deformity is considered noncompensably disabling under the schedular criteria. No other diabetic complications have been shown.

Absent regulation of activities, the preponderance of the evidence is against a disability rating in excess of 20 percent at any point pertinent to the claim on appeal. As such, reasonable doubt does not arise and the appeal is denied.

(CONTINUED ON NEXT PAGE)
ORDER

A rating in excess of 20 percent for diabetes is denied.

____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs

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