Middleton v. Shinseki, 727 F.3d 1127 (Fed. Cir. Aug. 15, 2013)
Assignment of a 40% disability rating for diabetes under Diagnostic Code (DC) 7913 requires that all three criteria in the diagnostic code are met – including the administration of insulin. This rating is not available to a claimant who uses another drug that causes the body to secrete insulin.
Veteran was service connected for diabetes, rated 20% disabling. He sought a higher rating because he was treated with three oral medications and daily injections of Byetta, a drug that induces the body to secrete insulin. VA denied the higher rating because the veteran did not use insulin to regulate his diabetes. The Board of Veterans’ Appeals held that the use of insulin was necessary to obtain the 40% rating. The Veterans Court and Federal Circuit affirmed. The Federal Circuit noted that the diagnostic code expressly calls for the use of insulin and does not provide for the use of another compound. The Federal Circuit agreed with the Secretary that the diagnostic code for diabetes (DC 7913) is a successive and cumulative rating schedule that requires the veteran to satisfy all criteria for the specific rating. The Court found that 38 C.F.R. § 4.7 did not apply in a case such as this because there was no question as to which rating applied when the veteran did not satisfy all the criteria of the higher rating, but did satisfy all the criteria for the lower rating.