Citation Nr: 18160611
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 05-17 656A
DATE:	December 27, 2018
ORDER
A 40 percent rating for diabetes, effective September 14, 2006, is granted.
FINDING OF FACT
Prior to his death, in September 2006, the Veteran’s diabetes required him to regulate his activities; regulation of activities was not required prior to this date..
CONCLUSION OF LAW
The criteria are met for a 40 percent for diabetes effective February 2, 2006.  38 U.S.C. § 1155; 38 C.F.R. § 4.119, DC 7913.  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from October 1967 to May 1969.  He passed away in May 2009.  The Appellant is his surviving spouse.

A 40 percent rating for diabetes, effective September 14, 2006, is granted. 
The Veteran appealed for a higher rating for his diabetes prior to his death in May 2009.  His surviving spouse has been substituted as the Appellant.  
Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  Separate diagnostic codes (DCs) identify the various disabilities.  See generally 38 C.F.R. Part 4.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  
The Veteran’s diabetes was rated 20 percent disabling under DC 7913.  38 C.F.R. § 4.119.  
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 warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities.  A 60 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities, and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated.  A maximum rating of 100 percent 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; and, involving 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.  Id.
After a review of the evidence, and in resolving all doubt in the Appellant’s favor, the Board finds that a 40 percent rating is warranted for diabetes starting from September 14, 2006, the date of a doctor’s questionnaire completed by Dr. J.C., which indicated that the Veteran met the criteria for a 40 percent rating, and that his diabetes requires insulin, restricted diet, and regulation of activities.  The doctor indicated that his activities were regulated in part due to his diabetic neuropathy, which the Veteran was also service-connected for, but the Board finds the opinion is sufficient to meet the criteria.  Given that he passed away before an updated VA examination could be conducted, the Board finds that the record adequately shows he meets the criteria for a 40 percent rating as of September 14, 2006.  
After careful consideration of the medical and lay evidence, the Board finds that this is the earliest date that the record indicates regulation of activities.
A higher rating is not warranted.  A 60 percent rating requires episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations in a year, or twice a month visits to a diabetic care provider, which is not shown by the evidence, and the Appellant has not so alleged.  The Board notes that a February 2006 medical opinion of Dr. S.F. indicates that the Veteran met the criteria for a 60 percent rating except that he did not have episodes of ketoacidosis or hypoglycemia.  She did not mention whether he visited a diabetic care provider two times a month, but the record does not show visits to a diabetic care provider this frequently.  The Appellant does not allege that the Veteran had to go to the doctor because of his diabetes that frequently.  A September 2004 medical opinion by Dr. T.V. indicates the Veteran met the criteria for a 100 percent rating, but did not provide any additional discussion.  As noted above, the record does not show ketoacidosis or hypoglycemia resulting in hospitalizations, or weekly visits to the diabetic care provider, which is required for a 100 percent rating.  
Accordingly, a 40 percent rating is warranted starting from September 14, 2006.

 
Nathaniel J. Doan
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Gibson 

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

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