Citation Nr: 18160623
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 17-03 511
DATE:	December 28, 2018
ORDER
Entitlement to an initial rating in excess of 20 percent for diabetes is denied.
Entitlement to an effective date prior to May 15, 2015 for diabetes is denied.

REFERRED
The issue of entitlement to service connection for glaucoma, to include as secondary to service-connected diabetes was raised in a November 2016 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication.
FINDINGS OF FACT
1. Throughout the period on appeal, the Veteran’s diabetes mellitus has been manifested by requiring oral medication, and a restricted diet; but not by the regulation of activities.
2. On May 15, 2015, the RO received the Veteran’s claim for entitlement to service connection for diabetes.
3. Prior to the receipt of the May 2015 claim, there were no pending requests for service connection for diabetes that remained unadjudicated.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20 percent for service-connected diabetes are not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.21, 4.119, Diagnostic Code (DC) 7913.
2. The criteria for an effective date earlier than May 15, 2015 for the grant of entitlement to service connection for diabetes are not met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from October 1969 to April 1972 and from January 1974 to January 1977, to include service in Vietnam.

Increased Ratings
Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  
In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.
After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As explained in further detail below, staged ratings are not appropriate in the present case.
1. Entitlement to an Initial Rating in excess of 20 Percent for Diabetes
Service connection has been established for diabetes mellitus.  The RO evaluated the Veteran’s disability as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913.
Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet.  A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is for application when diabetes mellitus 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.  A 100 percent evaluation requires 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 3 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, Diagnostic Code 7913.  
Under this provision, “regulation of activities” means “avoiding strenuous occupational and recreational activities.”  Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007).
Pursuant to Diagnostic Code 7913, Note (1)-pertaining to diabetes mellitus-complications are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately.  In this case, the Veteran asserts that his glaucoma is the result of his diabetes, however this contention has not been considered by the RO, and as mentioned above, is referred to the AOJ for development.  
VA treatment records reflect that the Veteran is receiving medical care for his diabetes mellitus.  The Veteran is prescribed oral hypoglycemic medication, advised to modify his diet, and regularly exercise.  It does not appear that the Veteran had any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, or that his activities are regulated. See May 2015 – June 2016 VA treatment records.
The Veteran attended a VA examination in August 2016. The examiner noted that the Veteran was taking oral medication and instructed to follow a restricted diet. The Veteran denied any restriction of activities on account of his diabetes.  The examiner determined that the Veteran’s diabetes mellitus, type II, did not impact his ability to work.  Outpatient treatment records did not show visits to his care provider two or more times per month.
On his November 2016 Notice of Disagreement (NOD), the Veteran contended that he was entitled to a higher disability rating for his service-connected diabetes because he had glaucoma.  He has not submitted any evidence to suggest that diabetes caused any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, or that his activities are regulated.
There is no medical or lay evidence the Veteran has been given a regulation of activities due to his diabetes which would be required for entitlement to a higher rating under the Rating Schedule.  Additionally, the outpatient records do not show nor does the Veteran report that he requires insulin or two or more monthly visits to his care provider.
The evidence does not approximate the criteria for a higher rating because the evidence does not indicate treatment requiring insulin or the regulation of activities, nor does it indicate that diabetes caused episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization or the requisite number of visits to a diabetic care provider along with the other criteria necessary.
Here, throughout the rating period, the evidence supports a finding that the Veteran’s diabetes mellitus requires oral medications and a restricted diet; and is against a finding that the Veteran’s diabetes mellitus requires insulin and the regulation of activities.  Under these circumstances, the evidence is against awarding an initial evaluation in excess of 20 percent.  
As the preponderance of the evidence is against this claim, the “benefit of the doubt” rule is not for application, and the Board must deny the claim.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Effective Date
2. Entitlement to an Effective Date Prior to May 15, 2015 for Diabetes
The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  See 38 U.S.C. § 5110(a) (2012).  Generally, for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018).  
The term “claim” means a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary.  See 38 C.F.R. 3.1(p) (2018).
A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 U.S.C. 5101(a) (2012); 38 C.F.R. 3.151(a) (2018).
Prior to March 2015, a “claim” was defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.”  See 38 C.F.R. § 3.1(p).
Based on a review of the evidence of record, the Board concludes that an effective date earlier than May 15, 2015 is not warranted for the grant of entitlement to service connection for diabetes.  
The Veteran filed a claim for entitlement to service connection for diabetes on May 15, 2015.  No communication received by VA from the Veteran prior to May 15, 2015 indicated intent to apply for entitlement to service connection for diabetes.  
As noted above, generally for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018).  Assuming (without deciding) for purposes of this decision that entitlement arose for service connection for diabetes prior to May 15, 2015, the date of claim, as the later date, would be the appropriate effective date for entitlement to service connection.  
As May 15, 2015 is date of the Veteran’s claim, it therefore is the earliest possible effective date for the grant of entitlement to service connection for diabetes.  
The Veteran’s contention appears to be that, essentially, he was diagnosed with diabetes around 2009, and that that should therefore be the appropriate effective date for the grant of entitlement to service connection.  See November 2016 NOD. As noted above, however, generally for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018).  
The date of diagnosis (or identification) of diabetes is not solely determinative as to the appropriate effective date for the grant of entitlement to service connection and the date of claim must also be considered.  As discussed above, assuming (without deciding) for purposes of this decision that entitlement arose for service connection for diabetes prior to May 15, 2015, the date of claim, as the later date, would be the appropriate effective date for entitlement to service connection.  As such, an earlier effective is not warranted.
In sum, the Board finds that no communication received by VA from the Veteran prior to May 15, 2015 indicated intent to apply for entitlement to service connection for diabetes.  
As such, the Board concludes that the criteria for an effective date earlier than May 15, 2015 for the grant of entitlement to service connection for diabetes have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018).  The Veteran’s claim therefore must be denied.


 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T. Fitzgerald, Associate Counsel 

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