Thread: Diabetes and Regulation of Activities

First off, I'm in the same boat. Type 1 onset about 3 weeks ago, was not fun one bit.

I found this on another board for type 2, but still can be used for us. Here are the two links.

Helpful hint for your Diabetes Claim - Diabetes II - VA Claims Discussions - Veterans Benefits Network - Message Board - Yuku

Regulation of activity - Diabetes II - VA Claims Discussions - Veterans Benefits Network - Message Board - Yuku

I'll sum it up as best as I can.

So back in 1996, The VA got together and went through each disability and talked about every word in the VASRD. Read about it here, on page 20443

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=1996_register&position=all&page =20440

Short story, in doesn't define "Regulation of activities" as "Avoidance of strenuous occupational and recreational activities", but it might as well.

Long story. Before 1996, it seems that "Avoidance of strenuous occupational and recreational activities" was spelled out, just like that on 100% and 40% level. The VA thought, "'Hey, lets change it to "regulation of activities"' and also put it on the 60% level. A commenter didn't agree with that, saying "it made the meaning less clear". The board agreed with the commenter, and said it would use the previous wording of "avoidance of strenuous occupational and recreational activities" and would only include it for 100%. It seems it would no longer be a part of 40% criteria.

Yet here we are, with "regulation of activities" on 40%, 60%, and 100%.

Okay, so now on to the exam. The same commenter said it's pointless to put limitations on activities since no information can be provided to the VA examination. VA disagrees. The VA examination is supposed to find everything, and there is a guide out there called "VA's Physician's Guide for Disability Evaluation Examinations". The guide was supposed to be revised to give "detailed guidelines" for the wording changes that occured in 1996. I have not looked into finding the guide.

Now for the kicker. In a Court of Veteran Appeals, this case (Camacho vs. Nicholson http://www.vetapp.uscourts.gov/documents/Camacho_05-1394.pdf) all parties agreed that "restriction of activities" ment "avoidance of strenuous occupational and recreational activities" at ALL levels of disability. So what you think "Okay, I can only work out half as hard as I used to, that's regulating my activities, 40%", the VA looks at and says "He's not avoiding that activity all together, 20%". I do not know if each service or MEB board goes by that ruling.

The author suggests printing out two paragraphs seeing if the doc will put it in your med folder, that is in the first link.

So what should we all do? Hell if I know, it seems like damed if you do, damed if you don't. You say you're regulating your activity, that might pigeonhold us into 20% right there because of the Court of Appeals case. If we say we "avoid strenous activity" all together, and actually do it, our health is bound to suffer. I am however, going to ask the doc that is examining me if he has looked at his "Guide" on Diabetes in the past 72 hours. If he hasn't, I'm probably getting a second opionion from someone who has.

Any thoughts from anyone?

Dio

Dio,

Welcome! Thanks for posting this interesting question.

I remind everyone, this is not legal advice. If you want that, you must have an attorney-client relationship. The important distinction here is that legal advice will take into account the circumstance of your case and advise you how to proceed. I am just giving my opinion about this issue. That said, if I am correct, this should all apply equally to the VA and the PEB (though, I am skeptical that the PEBs would always come to the correct conclusion, due to huge differences in procedures that end up encouraging different outcomes at the two agencies).

First, as a general matter, you have to consider that the main issue is what a claimant presents as evidence. It is worth noting that the only evidence presented on this issue in the Comacho case is that his employer restricted him from driving patients at work. This was not found to be a medical necessity due to his diabetes, but more of an administrative determination by the employer (ironically, the VA) to not have him drive. While the dissent points out that this raises a question of whether he should be driving at all, I think it is important to look at the fact that the employer was not acting in a medical care capacity. I think what the dissent was saying was that this issue should have been addressed by the C&P examiner. But, even more damning for Mr. Comacho was that he was advised to exercise, in fact was exercising 3 times per week, and no medical provider stated that he should curtail his activities:

"As to limitations other than driving, the appellant does not argue that a medical provider has indicated that his diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity. The appellant does not refute the Secretary's argument that there is none. On the contrary, there is evidence that the appellant was being encouraged to be more physically active, such as the March 2004 VAMC progress notes that advised the appellant to exercise 6-7 days per week. R. at 120. At that time, the appellant had informed the physician that he exercises approximately 3 days per week. The physician was, therefore, advising the appellant to increase his weekly exercise program. Hence, the record contradicts any assertion that the appellant was being advised to limit his strenuous activity."
Camacho v. Nicholson, 21 Vet. App. 360, 366 (U.S. App. Vet. Cl. 2007)
The main thing I take away from this case is that an employer stating you are restricted from driving at work, in the absence of a medical opinion to the same effect or any other evidence of restriction of activities, means that a BVA determination that you are not restricted will not be overturned by the Court.

It is important to note that Mr. Camacho did not develop any evidence of a medical opinion on this point prior to appealing to Court of Appeals for Veterans Claims, nor did he argue that his C&P exam was incomplete at the Court. He basically said that his employers determination that he can't drive patients at work equates with a medical determination that he "avoid strenuous activities." This resulted in the BVA finding that he produced no medical evidence, and the Court did not (and could not) find that he had an incomplete examination.

In the first link provided, I do not agree with the advice to gather information about stress. That is not the criteria in the VASRD, I think it starts to get the care provider to consider an issue that is not relevant to the regulations and may start them with giving a "no" answer. Once they are thinking critically, it may be harder to get them to address the primary issue, do you require regulation of "strenuous activities"? Though the author of the link is forthright and states that the medical care provider is not being asked to lie, I think it is important to recognize that diabetes, alone, does not equal a 40% rating. If diabetes requires "avoidance of strenuous activities" and you meet the other criteria, it does.

So what should we all do? Hell if I know, it seems like damed if you do, damed if you don't. You say you're regulating your activity, that might pigeonhold us into 20% right there because of the Court of Appeals case. If we say we "avoid strenous activity" all together, and actually do it, our health is bound to suffer. I am however, going to ask the doc that is examining me if he has looked at his "Guide" on Diabetes in the past 72 hours. If he hasn't, I'm probably getting a second opionion from someone who has.

I do not think the situation is as dire as all that. First, I think it is not the case that the "avoidance of strenuous activity" is an all or nothing proposition. That is, I do not think you have to be restricted from all activity. In fact, interestingly enough, you could say this definition helps. It is not that you need to avoid all activity or mild activity, it is strenuous activity that need be avoided. I think if a provider wrote a note that you "should engage in exercise as tolerated, but should avoid strenuous activity," then you have met the criteria for regulation of activities. I think diabetics who have restrictions on what they can actually do because of their condition should discuss this with their care providers. I am not sure that I would initially ask this to be put in a note (may, again, make the provider think you are only trying to get benefits). I think that if you raise the concern of your actual limitations on activity, the provider should note this in the record. However, if this does not result in a notation, then I think you may consider asking for this. The important thing, in my view, is that you start by focusing on your actual condition and not on "getting a statement" when dealing with your providers. I feel this way because I think in doing so, you may tend to get a more accurate and detailed note and will have less of a problem with providers not wanting to provide a statement. A blanket statement of "avoid strenuous activities" will be helpful. But, I think that a more detailed discussion may be more helpful (this is not always the case, I suppose this could backfire, like if there were conflicting information developed from the recommendation , like, "should avoid strenuous activities, such as marathons, however, should work out daily for 30-45 minutes, using weights and cardiovascular equipment in preparation for 5k run patient is running in next month." However, in this case, it is really questionable whether avoidance of strenuous activities is really medically necessary. This returns to the point that not all diabetics should be rated at 40% or more). But, the decision of how to approach the provider will turn on the dynamics of the relationship with the provider. I think that most people will have a sense if their provider is going to be helpful or is going to be difficult to approach.

Finally, if you think that your C&P eval (or your MEB) was incomplete or inaccurate, you will want to raise that as an issue.

Here is a link where you can find the Clinicians Guide: VBA 21Guides (U.S. Department of Veterans Affairs)

Here you can download the Diabetes Worksheet: Physical Evaluation Board Forum - PEB Library - Diabetes Worksheet

In looking at the second link provided, I do not agree with the author. There is no "automatic denial." It is a question of evidence. By the same token, you could state that any rating is an "automatic denial" in the absence of evidence.

Furthermore, I think this statement is not supported, doesn't make any sense and is wrong; "The real "kicker" in all this is that INCLUDING ANY CRITERIA OF REGULATION OF ACTIVITIES WITH OR WITHOUT AVOIDANCE OF STRENUOUS OCCUPATIONAL AND RECREATIONAL ACTIVITIES AS A CRITERIA AT ANY LEVEL OF DISABILITY FOR DIABETES IS A MOOT POINT AND CAN NOT BE MEDICALLY SUPPORTED."

What is needed is evidence of regulation of activities. I think that it is not helpful to go off on a tangent about stress.