DIABETES MELLITUS

J.W. FRANCIS · 2022 · Case ID: 22037064

MIXED

Summary

The veteran, who served in the U.S. Air Force from December 1982 to December 1992, with subsequent periods of service until August 2009, appeals the denial of an increased rating for diabetes mellitus, type II, and seeks a separate rating for diabetic retinopathy. The veteran's diabetes has been rated at 20 percent, which requires insulin or oral medication and a restricted diet. The veteran contended that she met the criteria for a higher rating due to the need for insulin injections, diet restrictions, regulation of activities, and alleged hospitalizations. However, the Board found insufficient evidence to demonstrate a medical necessity for regulating activities, and the VA examinations did not support the veteran's claims of required activity avoidance or frequent hospitalizations for diabetes-related events. The Board concluded that the evidence persuasively weighed against a rating higher than 20 percent for diabetes. Regarding diabetic retinopathy, the Board found that while the veteran's corrected visual acuity remained 20/20 or better and there were no visual field impairments, compensable incapacitating episodes related to the condition were present. Resolving doubt in the veteran's favor, the Board granted a separate 10 percent rating for diabetic retinopathy, effective October 18, 2021.

Rationale

Diabetes mellitus rated under DC 7913 with successive criteria.; No medical evidence demonstrated need to avoid strenuous activities.; Veteran's subjective reports of activity restriction outweighed by VA examinations.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

7913

Docket No.

14-09 151

Full Decision Text

Citation Nr: 22037064
Decision Date: 06/28/22 Archive Date: 06/28/22

DOCKET NO. 14-09 151
DATE: June 28, 2022

ORDER

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II is denied.

Entitlement to separate 10 percent rating for diabetic retinopathy, effective October 18, 2021, is granted.

FINDINGS OF FACT

1. The Veteran's diabetes mellitus, type II, required only restricted diet and one or more daily injection of insulin or an oral glycemic agent during the period on appeal.

2. The Veteran has had incapacitating episodes in the past 12 months that have 1 but not more than 3 documented treatments due to diabetic retinopathy effective October 18, 2021.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type 2, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

2. The criteria for entitlement to a 10 percent rating, but not higher, for diabetic retinopathy, effective October 18, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Codes 6006, 6040.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Air Force, from December 1982 to December 1992; from August 2007 to October 2007; from November 2007 to December 2007; from January 2008 to February 2008; and from August 2008 to August 2009.

These claims come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) that granted service connection for diabetes and assigned an initial 20 percent rating, effective September 1, 2009, the day following discharge from the last period of active duty.

The Veteran was scheduled for a videoconference hearing in July 2019; she was sent a hearing notification letter in May 2019, which was not returned as undeliverable. The Veteran failed to appear for the scheduled hearing and has not since submitted good cause for failure to appear and/or asked for it to be rescheduled. As such, the Board deems the hearing request withdrawn. See38 C.F.R. § 20.702(d).

In December 2021 the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141 (1999).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal.

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App
is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal.

If there is a question as to which evaluation to apply to the Veteran's disability, 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.

Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II

The Veteran's diabetes has been rated as 20 percent disabling for the entire period on appeal. The Veteran contends that she is entitled to a higher rating for her diabetes mellitus.

The Veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. 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 10 percent rating is warranted when diabetes is manageable by restricted diet only. 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. A 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 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).

Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). Regulation of activities means avoidance of strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. Camacho, 21 Vet. App. at 365 (citing 61 Fed. Reg. 20, 440 (May 7, 1996)).

The Veteran submitted a claim for service connection for diabetes in November 2009 following release from active duty on August 31, 2009.

Service treatment records show that she was diagnosed with latent autoimmune diabetes in adults (LADA) at a military
Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to establish that occupational and recreational activities have been restricted under Diagnostic Code 7913. Camacho, 21 Vet. App. at 365 (citing 61 Fed. Reg. 20, 440 (May 7, 1996)).

The Veteran submitted a claim for service connection for diabetes in November 2009 following release from active duty on August 31, 2009.

Service treatment records show that she was diagnosed with latent autoimmune diabetes in adults (LADA) at a military clinic in April 2009 after having a high blood glucose and A1C measurements six weeks earlier and a recent 13 pound weight loss. Clinicians started oral medication that was shortly changed to insulin in part because of intolerance of the oral medication and because of the progressive nature of LADA. In June 2009, a clinician noted no diabetic diet was required and there were no hypoglycemic episodes since the diagnosis. (There are later records including a physical evaluation board report and private records that indicate an initial diagnosis in 2006).

In January 2010, a private clinician noted improved control with insulin, diet restrictions and increased exercise.

In an April 2010 VA treatment record, it was noted that the Veteran began taking oral medication, but her diabetes worsened. A clinician noted that review of laboratory results and history indicated that the disorder was more likely diabetes type II than type I. The Veteran had lost 10 pounds but was experiencing chest pain was admitted to the hospital. Records from the hospital in April 2010 show investigation of chest pain. A cardiovascular disease was ruled out; the hospitalization was not for a diabetes event. See April 2011 Medical Treatment Record-Non-Government Facility, p.5.

In April 2010, the Veteran was afforded a VA diabetes examination. The examiner indicated that her treatment included 60 units of insulin daily and Humalog with meals. The Veteran did not have any hospitalizations in that past year. The Veteran reported that her activities were restricted as a result of her diabetes but the examiner made no comment about a requirement to limit activities. The Veteran further reported being low a low carbohydrates and sugar diet. The Veteran also visited a health care provider every three months.

In a March 2011 VA treatment record, a clinician noted that the Veteran was to inject 40 units of insulin, twice a day. See April 2011 Medical Treatment Record-Government Facility, p.5.

In an April 2011 notice of disagreement with the initial rating, the Veteran stated that she visited hospital emergency rooms twice (in 2006 for headache and again in 2010 for chest pain) and believed those hospitalizations may have been related to her condition. The April 2010 visit was for chest pain and not a hypoglycemic or other diabetes event. The Veteran contended that her condition should have been rated at 40 percent or higher because she took 40 units per day of insulin (Lantus); 10 units of Novolog with a low glycemic meal normally three times a day. The Veteran further noted that she limited her sugar intake to no more than 15 grams per day and she had to monitor her blood sugar 5 times a day and when she felt she was becoming hypoglycemic. The Veteran also indicated that she was restricted in her physical activities, because she could no longer run due to her hypoglycemic and her knees. The Veteran stated she was limited to walking, non-impact elliptical and a recumbent bike. In addition, the Veteran reported that she could not step out of the bathtub due to being unable to put pressure on her knees; the condition made her unfit for the military and she stated that her insulin caused her to gain 40 pounds. The Veteran stated that she was hospitalized due to chest pains, and it was revealed that her heart was fine but her blood sugar was 137 and her potassium was low. See April 2011 NOD.

In June 2012, the Veteran received a disability discharge with severance pay from the Air Force Reserve because of diabetes requiring insulin. The physical evaluation board noted that the disorder required insulin and a diabetic diet for weight control and that the Veteran did regular mild cardiovascular exercise and weight-lifting. There were no activity restrictions, and the Veteran continued to perform civilian job duties as a paralegal.

The Veteran attended a VA examination in February 2013. The examiner noted the Veteran was treated with a restricted diet, prescribed oral hypoglycemic agent, and an insulin
it was revealed that her heart was fine but her blood sugar was 137 and her potassium was low. See April 2011 NOD.

The Veteran attended a VA examination in February 2013. The examiner noted the Veteran was treated with a restricted diet, prescribed oral hypoglycemic agent, and an insulin (1 injection per day). There was no regulation of activities. The Veteran reported visiting a care provider less than 2 times per month, no hospitalizations in those past 12 months. The Veteran denied unintentional weight loss and strength. The examiner noted that the Veteran had diabetic neuropathy. The examiner noted that the Veteran did not have any of the listed conditions associated with diabetes, including diabetic retinopathy.

In a December 2017 and a September 2020 appellate brief, the Veteran's representative noted, "Although the Veteran has not been medically regulated in her activities, her diabetic symptoms ultimately regulate her activities." See December 2017 Appellate Brief, p. 2; see also October 2020 Appellate Brief, p.2.

In a January 2020 VA treatment record, the Veteran reported that for exercise she went walking, did martial arts 3-4 times/week, used a recumbent bicycle, did yoga, went swimming, and did light resistance exercise. See January 2021 Capri, p.111.

The Veteran attended a VA examination in March 2021. The examiner noted the Veteran was treated with a restricted diet, oral hypoglycemic agents, and insulin injections. The examiner stated that the Veteran required regulation of activities as part of medical management of her diabetes, because she reported checking her sugar before completing an activity that required exertion. She stated that she had episodes of hypoglycemia, ketoacidosis, or hyperglycemia that required medical care less than 2 times per month. The Veteran did not have an episode of either condition within those past 12 months. The examiner noted that the Veteran had diabetic neuropathy but made no mention of diabetic retinopathy.

In an August 2021 VA treatment record, the Veteran reported that she had hypoglycemic episodes since she moved and had increased her activity. See September 2021 Capri, p.42.

In September 2021, the March 2021 VA examiner provided an addendum opinion. The examiner noted the Veteran reported that she had to check her sugars before exertion. Before taking her dog on a walk which includes a hill, she checked her blood sugar and made sure that she had her glucose tabs on hand. The Veteran's reported of having to quit marital arts training. However, the examiner found that was the sort of care that was often required in the general diabetic population and did not constitute regulation of activities as described by VA guidelines, but routine diabetic care. The veteran denied recent hyperglycemic or hypoglycemic episodes requiring care.

The Veteran attended a VA examination in January 2022. The examiner noted the Veteran was treated with a restricted diet; oral hypoglycemic agents and insulin injections but did not require regulation of activities as part of medical management of her diabetes. She denied episodes of hypoglycemia, ketoacidosis, or hyperglycemia requiring any urgent medical care or hospitalizations. The Veteran reported unintentional weight loss and strength. The examiner noted that the Veteran had diabetic neuropathy and diabetic retinopathy. The Board notes that the Veteran is already service connected for diabetic neuropathy and most recently received an increase rating for her neuropathy. The Veteran's diabetic retinopathy is discussed further below.

In light of the above, the Board finds insufficient evidence to demonstrate that the Veteran has or has had a medical need to avoid strenuous recreational and occupation activity due to her diabetes.

The 20 percent evaluation contemplates a requirement for insulin or an oral hypoglycemic agent and restricted diet. VA examination and treatment records reflect that the Veteran has taken oral hypoglycemic medication and insulin throughout the period at issue. Her diabetes has generally been noted to require a restricted diet.

However, in order to warrant a 40 percent evaluation, there must be regulation of activities. Here, there is no indication in the record that the Veteran was required to regulate her activities in order to manage her diabetes at any point. Both VA examinations and ongoing treatment records show that the Veteran has not been required to regulate her activities to manage her diabetes. Notwithstanding comment in the Veteran's March 2021 VA examination, which was based on the Veteran's subjective report, the comment was refuted by a September 2021 addendum opinion that stated that the Veteran's account in the March 2021 examination did not meet the regulation of activities provided in VA guidelines.

While she seeks a 40 percent rating generally, the Board finds the VA examinations of record, specifically the January 2022 VA examination report to be more probative. There is no indication that it is actually medically necessary for her to avoid strenuous occupational and recreational activities due to her diabetes. Treatment records are silent regarding avoidance of strenuous activity related to diabetes. The VA examination reports suggest she does not have to avoid strenuous activity. Her assertions to the contrary are outweighed and the evidence is persuasively against finding that the Veteran's diabetes actually caused the Veteran to avoid strenuous occupational and recreational activities, nor is there any indication that it is medically necessary for the Veteran to regulate her activities.

Accordingly, the evidence is persuasively against assigning a rating in excess of 20 percent for diabetes mellitus, type II.

Diabetic Retinopathy

The Veteran seeks entitlement to a separate compensable rating for diabetic retinopathy.

The Veteran is not currently in receipt of a separate rating for diabetic retinopathy. Instead, the diabetic retinopathy is rated with her service-connected diabetes mellitus under Diagnostic Code 7913, for symptoms related to diabetes mellitus.

Separate Ratings

Pursuant to Note 1 under Diagnostic Code 7913, the Board must assign separate ratings for any compensable complications of the Veteran's service-connected diabetes mellitus, type II. All noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119; Diagnostic Code 7913, Note (1).

Diabetic retinopathy is rated pursuant to DC 6040, under the General Rating Formula of Diseases of the Eye. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.

Under the former criteria, Retinopathy was rated pursuant to DC 6006, which instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructed to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted.

Under the revised criteria, diabetic retinopathy has been given a separate code, Diagnostic Code 6066, which instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye. The General Rating Formula for Diseases of the Eye instructs to evaluate on the basis of either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where there are documented, incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented, incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented, incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented, incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted.

The rating criteria do not explicitly define an incapacitating episode as applicable to retinopathy. However, the criteria do specify such episode as one requiring a certain frequency of non-routine treatment, suggesting that an incapacitating episode is one in which the patient experiences an acute degradation of visual acuity from what was otherwise a stable state.

Both the former and revised criteria provide for consideration of visual impairment. The amendments made no substantive changes to how visual acuity is rated.

The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75 (a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25.

Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76 (b) (1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76 (c).

Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted.

The Board concludes that the Veteran did have compensable complications related to diabetic retinopathy during the period on appeal.

On October 19, 2021, VA outpatient treatment records show that the Veteran sought VA care for left eye visual changes. A clinician referred to an examination by optometrist Dr. P.L. on October 18, 2021 that found vitreous hemorrhage, multiple large floaters, and cotton-wool spots in the left eye and severe retinopathy in the right eye. The attending VA clinician referred the Veteran for private care.

In a January 2022 private treatment record, an examiner noted that the Veteran had blurred vision, that was mild in severity. The examiner diagnosed the Veteran with proliferative diabetic retinopathy OD>OS, diabetes, Type II with ocular complications. See January 2022 Medical Treatment Record-Non-Government Facility, p.1.

In March 2022, the Veteran was afforded a VA eye examination. The examiner reviewed the claims file; considered the Veteran's accounts and conducted an evaluation. The examiner noted that the Veteran was diagnosed with bilateral diabetes mellitus with proliferative diabetic retinopathy without macular edema, in October 2021. The examiner also noted a diagnosis of bilateral cataracts and vitreous degeneration. Upon examination the Veteran had bilateral uncorrected distance visual acuity of 20/20 or better and uncorrected near visual acuity of 20/200, bilaterally. Her corrected bilateral distance visual acuity was 20/20 or better.
Record-Non-Government Facility, p.1.

After review of the record, the Board finds that a separate compensable rating for bilateral diabetic retinopathy is warranted. The evidence of record does not demonstrate that the retinopathy manifested by an impairment of central visual acuity or visual fields at any time during the pendency of the claim. The Veteran's corrected visual acuity is shown to be 20/20 or better in both eyes at all times and there is no noted visual field impairment. However, the Board finds that a separate rating is warranted because there is evidence of incapacitating episodes relating to the Veteran's eye. The Board notes that the examiner did not specify which eye condition caused the episodes, but the benefit of doubt will be given to the Veteran. The examiners found no functional impact due to the retinopathy. The Board has also considered whether the application of another Diagnostic Code would be more appropriate, however no other Diagnostic Code would warrant a higher rating for the Veteran.

Therefore, resolving any doubt of the earliest date that is was factually ascertainable that diabetic retinopathy met the compensable rating, the Board finds a separate 10 percent rating for diabetic retinopathy is warranted from October 18, 2021.

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board E. Long-Ellis, 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.

Analyze in VA Law Explorer