Citation Nr: 0720169 Decision Date: 07/05/07 Archive Date: 07/13/07 DOCKET NO. 03-29 212 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to increased rating in excess of 20 percent for the service-connected diabetes mellitus. ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from November 1965 to July 1989. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2003 RO rating decision that granted service and assigned a 20 percent rating for diabetes mellitus, effective on February 13, 2002. In connection with current appeal, the veteran has asserted the he is experiencing impaired circulation in the legs due to the service-connected diabetes mellitus. Other material in the record also suggests that he may have secondary peripheral neuropathy. These previously unaddressed matters are referred to the RO for appropriate action. In June 2004 the Board remanded the case to the RO, via the Appeals Management Center (AMC), for further development of the record. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. Since February 13, 2002, the service-connected diabetes mellitus is not shown to be productive of a disability picture manifested by the use of insulin, a restricted diet and the required regulation of activities; neither episodes of ketoacidosis or hypoglycemic reactions nor symptoms requiring hospitalizations are demonstrated. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 & Supp. 206); 38 C.F.R. §§ 3.655, 4.7, 4.119 including Diagnostic Code 7913 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In June 2004, after to the rating decision on appeal, the AMC sent the veteran a letter advising him that in order to support a claim for higher evaluation for a service-connected disability, the evidence must show that the disability had become worse; the veteran had an opportunity to respond prior to the issuance of the February 2007 Supplemental Statement of the Case (SSOC). The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for increased rating and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the June 2004 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The June 2004 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letters also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained, the first three content-of-notice requirements have been met in this appeal. The record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support a claim for increased rating and of the evidence of record. The Board finds that he has been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Following the issuance of the June 2004, which completed VA's notice requirements, the veteran was afforded an opportunity to present information and/or evidence pertinent to the appeal before issuance of the Supplemental Statement of the Case (SSOC) in February 2007. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the September 2003 Statement of the Case (SOC), which suffices for Dingess. Dingess also held that VA notice must include information regarding the effective date that may be assigned though this was not expressly done the Board's decision herein denies the claim for increased initial rating, so no effective date is being assigned. There is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. Finally, the veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for increased rating for the service-connected disability of diabetes mellitus. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2006). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran's diabetes is evaluated under 38 C.F.R. § 4.119, Code 7913. The rating criteria for DC 7913 are as follows. A rating of 10 percent may be assigned for diabetes mellitus is manageable by restricted diet only. A rating of 20 percent may be assigned for diabetes mellitus when insulin and a restricted diet or when an oral hypoglycemic agent and a restricted diet are required. A rating of 40 percent may be assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A rating of 60 percent may be assigned for diabetes mellitus requiring 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 rating of 100 percent may be assigned for diabetes mellitus requiring 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. Per the rating criteria of DC 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process. See 38 C.F.R. § 4.120, DC 7913, Note (1). The Board has accordingly considered the evidence of the severity of the veteran's symptoms since the February 13, 2002, effective date of the grant of service connection. Currently on file are copies of the veteran's private treatment records dating from 1999 to 2003. In June 2002, when seen by his primary care physician, the impression was that of type 2 diabetes with some mild neuropathy. In February 2003, when seen initially by another primary care physician, the veteran noted that he had some protein in his urine at times. The diagnoses included those of hyperlipidemia and uncontrolled diabetes, and it was noted an effort would be made to get his LDL cholesterol level to less than 100 and his hemoglobin Alc level to less that 7. In April 2003, when seen by a pulmonary and critical care specialist, the impression included that of possible aspiration and possible autonomic dysfunction secondary to diabetes mellitus. In a June 2006 statement, the veteran reported that he was put on another medication by injection twice a day by his private doctor. He felt this was a major determining factor for a 40 percent rating. Earlier, in his Substantive Appeal, the veteran had asserted that his disability picture more nearly approximated the criteria for the higher rating on the basis that his activities are very much regulated as evidenced by the time that was required for medical treatment and testing. He also suggested that the established staged rating levels were not "magical" and that a 30 percent could be applied in his case. The veteran had a VA medical examination in September 2006. His diabetic regimen was that he took Glucophage, Actos, glimepiride and Byetta (10 mg. taken subcutaneously twice a day).. In addition, he was on a low carbohydrate diet and tried to exercise regularly. He denied having any ketoacidosis or hypoglycemic reactions or any hospitalizations for complications directly attributable to his diabetes. The veteran claimed that, because of his diabetes mellitus, his energy level was very low and that he retired early from teaching as a result. The veteran checked his finger stick glucose readings daily with morning his glucose in the range of 115 and the evening level in the 140"s. The veteran was seeing his primary health care doctor every three to six months for adjustment of his medication. The laboratory testing showed findings of urine microalbumin of 13.4. hemoglobin Alc of 6.4, urea nitrogen of 19 and creatinine of 1.0. The diagnosis was that of uncontrolled diabetes mellitus type II. The Board finds that the service-connected disability picture clearly meets the criteria for the 20 percent rating since his diabetes mellitus is shown by the medical evidence to be treated with medication and efforts at dietary restriction. While the veteran is noted to recently have been placed on Byetta by injection, this adjustment in medication would still be addressed by the currently assigned rating. It is significant that the recent examination found the service-connected diabetes mellitus to be uncontrolled on his regime. However, the submitted private medical records show that the diabetes mellitus did require ongoing treatment with increasing medication levels, as well as apparent efforts at weight loss and exercise to obtain control. The treatment records in this regard do not show that the veteran had been fully compliant with the recommended diet and exercise regime. Significantly, he is not shown to have had more serious complications such as ketoacidosis, hypoglycemic reactions or symptoms requiring hospitalization. The criteria for a rating of 40 percent are not met in this case because, in addition to using prescribed medication and following a restricted diet, he is not required to regulate his activities due to the disabling effects of the service- connected diabetes mellitus. There is no medical evidence to support his assertions that his recent retirement was caused by any restriction of activities due to the service-connected disability. Any time lost for medical appointments or treatment would not constitute a required regulation of activities to warrant the assignment of the 40 percent rating in this case. Finally, the veteran has not presented evidence to show the service-connected diabetes mellitus is productive of such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization as to warrant the assignment of a higher rating on an extraschedular basis. The Board also lacks the authority to assign a 30 percent rating proposed by the veteran as a form of settlement in this case. For all the foregoing reasons, the Board finds the claim for a rating higher than 20 percent for service-connected diabetes mellitus must be denied. ORDER An increased initial rating in excess of 20 percent for the service-connected diabetes mellitus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs