Camacho v. Nicholson, 2007
- Organization: CAVC
- Document Type: Case law/admin decisions
- Date Created: Wednesday, November 30, 2016
- Submitted: Wednesday, November 30, 2016
- Attachment(s): PDF
Before KASOLD, MOORMAN, and LANCE, Judges.
MOORMAN, Judge, filed the opinion of the Court. KASOLD, Judge, filed an opinion concurring in part and dissenting in part.
MOORMAN, Judge: The appellant, veteran Miguel A. Camacho, appeals through counsel a February 2, 2005, decision of the Board of Veterans' Appeals (Board) that denied entitlement to an initial disability rating in excess of 20% for diabetes mellitus (diabetes). The parties each filed briefs, and the appellant filed a reply brief. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The Board found that the only criterion not established that is necessary for the next higher disability rating, i.e., 40% rating, is whether the evidence demonstrated that the appellant is required to "regulate his activities" within the meaning of 38 C.F.R. 4.119, Diagnostic Code (DC) 7913 (2004). On appeal, we must determine whether a decision by the appellant's employer to disqualify him from driving other individuals at work constitutes a "regulation of activities" within the meaning of DC 7913. Deferring to VA's interpretation of DC 7913, we hold that in order for a claimant to be entitled to a 40% disability rating, the evidence must show that it is medically necessary for a claimant to avoid strenuous occupational and recreational activities. Because the evidence of record does not establish that it was medically necessary for the appellant to regulate his activities due to his service-connected diabetes within the meaning of DC 7913, the Court will affirm the February 2005 Board decision.
Upon consideration of the parties' briefs and the record on appeal, the February 2, 2005, Board decision is AFFIRMED.
KASOLD, Judge, concurring in part and dissenting in part: I agree with the majority opinion in so far as it holds that the criteria established in DC 7913 for a 40% disability rating for diabetes are conjunctive and that one of those criteria requires that a claimant's activities be regulated such that he avoid strenuous occupational and recreational activities. I disagree, however, with the majority's conclusions that there is a "plausible basis for the Board's determination that there is no medical evidence that the appellant's activities are restricted." See ante at 7.