Citation Nr: 18132326
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-06 282
DATE:	September 6, 2018
ORDER
Entitlement to an increased rating in excess of 20 percent for the Veteran’s service connected type II diabetes mellitus is denied.
FINDING OF FACT
Throughout the appeal period, the Veteran’s type II diabetes mellitus has been managed by the use of oral hypoglycemic agents, insulin, and a restricted diet, but it has not medically required regulation of activity.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1968 to December 1971.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA).  The Veteran perfected his appeal (see August 2013 Notice of Disagreement (NOD), January 2016 Statement of the Case, and February 2016 VA Form 9).
Additional evidence was subsequently received and considered in a November 2017 rating decision, which continued the Veteran’s current 20 percent rating.
Entitlement to an increased rating in excess of 20 percent for the Veteran’s service connected type II diabetes mellitus.
Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4.  Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  See 38 C.F.R. § 4.1.
If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.
The Veteran’s service connected type II diabetes mellitus is evaluated under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913, and is currently rated at 20 percent.
Under DC 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet.  The next higher rating is 40 percent, which is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  The Board notes that the use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met.  See Melson v. Derwinski, 1 Vet. App. 334 (1991).
The Veteran asserts that his service connected diabetes mellitus warrants a 40 percent rating.  The Veteran related in his August 2013 NOD that he takes insulin, has a restricted diet, and has limited physical activity that is 80 percent sedentary.  In his February 2016 VA Form 9, the Veteran contends his diabetes mellitus has required a modified diet and restriction in activities.  The Veteran indicates that an August 12, 2015, Disability Benefits Questionnaire completed by a private treating physician supports his need for a modified diet, restriction in activity, and use of insulin daily.
The Board notes that while the Veteran is competent to give evidence about what he experiences, for example his current pain symptoms, he is not competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities.  See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  In addition, the private treatment records show that the Veteran related to going on a 22 mile bike ride in July 2016, which is inconsistent with his assertions of activity restriction.  The Board finds that the totality of the competent evidence reflect that the 20 percent rating appropriately compensates the Veteran’s type II diabetes mellitus throughout the period on appeal.
A review of the evidence reflects that the Veteran’s diabetes mellitus is managed by oral medications, insulin, and a restricted diet.  This is supported by the August 2015 Disability Benefits Questionnaire by private treatment provider L.W., M.D. and the November 2015 VA examination report.  Dr. L.W. and the November 2015 VA examiner opined that the Veteran’s diabetes mellitus is managed using oral medication, daily insulin injections, and a restricted diet.  The more recent September 2017 VA examination report indicates the Veteran’s diabetes is treated with oral medication and daily insulin injection, but not restricted diet.  However, the Board finds the opinions by Dr. L.W. and the November 2015 VA examiner more probative as consistent with each other and with an August 2015 private treatment record showing the use of medications and a recommended diet to treat the Veteran’s low blood sugar complaints.
However, the medical evidence does not reflect the Veteran has had to regulate his activities to manage his diabetes mellitus.  In order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007).  In this case, the medical opinions and treatment records suggests physical activity was encouraged.  The August 2015 opinion from Dr. L.W. indicates a required regulation of activities as part of medical management for the Veteran’s diabetes mellitus, but relates a recommendation for 30 minutes of exercise daily, and not a restriction in activity.  The November 2015 and September 2017 VA examiners both opined that the Veteran did not require a regulation of activities as part of medical management of his diabetes mellitus.  An August 2015 VA treatment record recommended the Veteran aim for at least two and a half hours of moderate intensity aerobic activity each week.  Moreover, after the Veteran reported low blood sugar due to riding his bike 22 miles in July 2016, his private treatment provider only recommended adjusting his medications and carrying a carbohydrate source, and not that he should restrict his physical activity.
In the absence of medical evidence showing the Veteran has been required to regulate his activities, a rating in excess of 20 percent is not warranted for his service connected type II diabetes mellitus.

(Continued on next page)


In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Lin, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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