Citation Nr: 1015288 Decision Date: 04/27/10 Archive Date: 05/06/10 DOCKET NO. 08-03 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for hepatitis C, to include as a result of herbicide exposure. 2. Whether new and material evidence has been received to reopen a claim for service connection for tinea cruris. 3. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). As will be noted below, the evidence appears to raise the issues of entitlement to service connection for erectile dysfunction and special monthly compensation due to loss of use of a creative organ. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it. If appellant wants to file a claim for these benefits, he should do so at the RO and the matters are otherwise referred to the RO for appropriate action. FINDINGS OF FACT 1. Hepatitis C was not shown in service or until approximately 37 years after discharge from service; there is no competent evidence that would relate the Veteran's hepatitis C to either active service, his service connected diabetes mellitus, or Agent Orange exposure. 2. The Veteran's claim for service connection for tinea cruris was initially denied in a May 1973 rating decision; he got notice and did not submit a notice of disagreement with this decision within one year of notice thereof. 3. The evidence considered by the May 1973 rating decision included the service treatment records and an April 1973 VA examination; on the basis of this evidence it was determined that tinea cruris was first shown more than two years after discharge from service and was therefore not incurred in or aggravated by service. 4. The additional evidence submitted since May 1973 does not show treatment or diagnoses of tinea cruris, and does not purport to relate the claimed tinea cruris to active service, service connected disorder, or herbicide exposure. 5. The Veteran's diabetes mellitus is treated with oral medication and a low carbohydrate diet, but there is no evidence of regulation of activities during any portion of the period on appeal. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred in or aggravated by active service, was not incurred or aggravated as a result of a service connected disability, and it may not be presumed to be the result of active service, including exposure to herbicides in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2009). 2. The May 1973 rating decision that denied service connection for tinea cruris is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.105(a) (2009). 3. New and material evidence to reopen a claim for service connection for tinea cruris has not been received. 38 C.F.R. § 3.156(a) (2009). 4. The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.119, Code 7913 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 38 C.F.R. § 3.159 (2009). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In addition, the Court has held that in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1, (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. In this case, the Veteran was provided with a letter in January 2007 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter also contained the additional notice for claims to reopen as defined by Kent. This letter was provided to the Veteran prior to the initial adjudication of his claims. As for the Veteran's claim for an increased evaluation for his service connected diabetes mellitus, this appeal arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). However, the Board notes that the January 2007 letter also included VCAA notification pertaining to the Veteran's claim for compensation for diabetes mellitus. The Board concludes that the duty to notify has been met for all issues on appeal. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records, private medical records and VA treatment records have been obtained. He was afforded a VA examination of his diabetes mellitus in August 2007. The Veteran declined his right to a hearing in his January 2008 Substantive Appeal. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeals. At this juncture, the Board notes that the Veteran has requested that he be afforded VA examinations for his hepatitis C and his tinea cruris. He has not yet been provided with examinations of these disabilities in conjunction with his current claim. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. However, in this case even the low threshold for finding a link between the Veteran's hepatitis C and service has not been met. The evidence shows that he has a diagnosis of hepatitis C. However, the service treatment records are negative for hepatitis C, and the Veteran does not claim that this disability began during service. The evidence further shows that hepatitis C was not diagnosed until 37 years after service. The Veteran does not report continuity of symptomatology for his hepatitis C, and there is no competent evidence of a link between this disability and active service. The records are also negative for any competent evidence of a relationship between Agent Orange exposure and hepatitis C, and for competent evidence of a relationship between the Veteran's service connected diabetes mellitus and hepatitis C. The Board concludes that a VA examination of the Veteran's hepatitis C is not required. As for the Veteran's request to reopen his claim for service connection for tinea cruris, the Board notes that such examinations are only available after a claim has been reopened with new and material evidence. 38 C.F.R. § 3.159(c)(4)(C)(iii). The Board concludes that the duty to assist the Veteran in the development of his claims has been met. Service Connection The Veteran contends that he is entitled to service connection for hepatitis C. He argues that this disability may be the result of exposure to herbicides such as Agent Orange during service. In the alternative, he believes that there may be a relationship between his service connected diabetes mellitus and hepatitis C. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in- service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). The Board notes that the Veteran's current diagnoses include cirrhosis of the liver as a result of his hepatitis C. If cirrhosis of the liver becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of cirrhosis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). As for the Veteran's contentions that his hepatitis C may be related to his service connected diabetes mellitus, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995); see also 38 C.F.R. § 3.310(b). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). Regarding the contention that hepatitis C may have developed due to Agent Orange exposure, a veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicides. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected even though there is no record of such disease during service; chloracne or other acneform disease consistent with chloracne, Type 2 diabetes, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma, leiomyosarcoma, epithelioid leiomyosarcoma (malignant leiomyoblastoma), rhabdomyosarcoma, ectomesenchymoma, angiosarcoma (hemangiosarcoma and lymphangiosarcoma), proliferating (systemic) angioendotheliomatosis, malignant glomus tumor, malignant hemangiopericytoma, synovial sarcoma (malignant synovioma), malignant giant cell tumor of the tendon sheath, malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas, malignant mesenchymoma, malignant granular cell tumor, alveolar soft part sarcoma, epithelioid sarcoma, clear cell sarcoma of tendons and aponeuroses, extraskeletal Ewing's sarcoma, congenital and infantile fibrosarcoma, and malignant ganglioneuroma. 38 C.F.R. § 3.309(e). For the purposes of this section, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff'g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A review of the evidence reveals that the service treatment records are negative for findings related to or a diagnosis of hepatitis C. The Veteran has submitted private medical records dating from 1998 to 2008 that outline the Veteran's treatment for hepatitis C. These records show that this disability was first diagnosed in 1997. They also describe the various treatment regimens that the Veteran has undergone as a result of this disability. However, they do not contain any evidence or even a reference as to the cause of the hepatitis C, and there is no medical opinion that addresses the etiology of this disability. The Board concludes that entitlement to service connection for hepatitis C must be denied. The Veteran has a current diagnosis of hepatitis C. However, the service treatment records are negative for this disability, and the private medical records show that he was first diagnosed with hepatitis C in 1997, which is approximately 37 years after his discharge from service. The Veteran does not argue that he initially developed hepatitis C due to any incident in service. There is no statement from the Veteran or any other evidence that would tend to show continuity of symptomatology between discharge from service in 1970 and the initial diagnosis in 1997. There is no medical opinion that purports that the Veteran's current hepatitis C is related to service. Therefore, without evidence of hepatitis C in service and without competent evidence of a relationship between the current hepatitis C and service, service connection on a direct basis is not warranted. Similarly, there is no evidence to support the Veteran's claim for service connection for hepatitis C as secondary to diabetes mellitus. There is absolutely no competent evidence of an etiological relationship between these disabilities, and there is no competent medical opinion regarding such a relationship. There is also no evidence that the Veteran's service connected diabetes mellitus may have aggravated the nonservice connected hepatitis C. The Board concludes that there is no basis for service connection on a secondary basis. See Jones v. Brown, 7 Vet. App. 134 (1994). Finally, the Board is unable to find that presumptive service connection for hepatitis C as a result of Agent Orange exposure is warranted. The record shows that the Veteran served in Vietnam, which means that exposure to Agent Orange is conceded. 38 C.F.R. §§ 3.307, 3.309. However, hepatitis C is not a disability for that has been associated with exposure to Agent Orange. 38 C.F.R. § 3.309(e). The Veteran has not submitted any other competent medical evidence of a relationship between hepatitis C and Agent Orange. Service connection for hepatitis C on this basis is not established. In reaching this decision, the Board notes the Veteran's sincere belief that he has developed hepatitis C as a result of either active service, his diabetes mellitus, or Agent Orange exposure. However, the Veteran is not a physician, and he is not qualified to express a medical opinion as to such relationships. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the absence of such evidence, his claim must be denied. New and Material The Veteran contends that he has developed tinea cruris as a result of active service. He also believes that this disability may be related to Agent Orange exposure. The record shows that entitlement to service connection for tinea cruris was denied in a May 1973 rating decision. The Veteran was notified of this decision in a May 1973 letter. He did not initiate an appeal of this decision by submitting a notice of disagreement. Therefore, the May 1973 decision is final, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). A veteran may reopen a finally adjudicated claim by submitting new and material evidence. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection. Evans v. Brown, 9 Vet. App. 273, 284, (1996) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table)). The newly presented evidence is presumed to be credible for purposes of determining whether or not it is new and material. Savage v. Gober, 10 Vet. App. 488 (1997). The Court has stated that for the purpose of determining whether or not new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis, and not only since the last time it was disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The evidence considered by the May 1973 rating decision included the Veteran's service treatment records and the report of an April 1973 VA examination. The decision noted that the service treatment records were negative for complaints or treatment for the claimed skin condition. The April 1973 VA examination diagnosed tinea cruris of both groins. However, the decision denied the Veteran's claim on the basis that the skin disability was not shown to have been incurred or aggravated in service, as the first evidence of the claimed condition was on the April 1973 VA examination dated two and a half years after discharge. The Board observes that based on the holding of the May 1973 rating decision, the additional evidence submitted by the Veteran, or otherwise received by VA, would have to purport to show a relationship between the Veteran's current tinea cruris and active service in order to be both new and material. This would include evidence of a relationship between tinea cruris and herbicide exposure. Evidence of treatment for tinea cruris in service would also be new and material. Unfortunately, the Veteran has not submitted and VA has not otherwise received any evidence that shows a relationship between his claimed tinea cruris and active service. In fact, none of the additional evidence shows any treatment for tinea cruris. Although these records contain assessments of eczema on the buttocks, there is no reference to tinea cruris or to any other skin disability of the groin. As for the Veteran's belief that tinea cruris may be related to Agent Orange exposure, the Board notes that the only skin disabilities that are recognized as being related to herbicides are chloracne or other acneform disease consistent with chloracne, and porphyria cutanea tarda. 38 C.F.R. § 3.309(e). Tinea cruris is not recognized as being presumptively related to Agent Orange. Finally, the Veteran has not submitted any additional evidence that purports to show treatment for tinea cruris during active service. Therefore, as the Veteran has not submitted any additional evidence that shows current treatment for tinea cruris, much less any evidence that relates this disability to active service, and as tinea cruris is not a disability that has been related to Agent Orange exposure, the additional evidence is not new and material and the Veteran's claim may not be reopened. 38 C.F.R. § 3.156(a). Increased Initial Evaluation The Veteran contends that the 20 percent evaluation initially assigned to his service connected diabetes mellitus is insufficient to compensate for the impairment that results from this disability. He argues that he has had diabetes mellitus for five years, and that it has resulted in more damage to his body than is reflected by the one year of compensation he had received at the time he submitted his substantive appeal. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board notes that this issue involves the Veteran's dissatisfaction with the initial rating for his disability assigned following the grant of service connection. The Court has found that there is a distinction between a Veteran's disagreement with the initial rating assigned following a grant of service connection, and the claim for an increased rating for a disability in which entitlement to service connection has previously been established. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999) see also, Hart v. Mansfield, 12 Vet. App. 505 (2007). The record shows that entitlement to service connection for diabetes mellitus was established by the October 2007 rating decision on appeal. This decision assigned the 20 percent evaluation that is currently in effect. The Veteran's disability is evaluated under the rating code for diabetes mellitus. Diabetes mellitus that requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 is evaluated as 100 percent disabling. Diabetes mellitus that requires 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 is evaluated as 60 percent disabling. Diabetes mellitus that requires insulin, restricted diet, and regulation of activities is evaluated as 40 percent disabling. When insulin and a restricted diet is required, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. When diabetes mellitus is manageable by restricted diet only, a 10 rating is warranted. Note one states that the adjudicator is to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Note two states that when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Code 7913 (2000). The evidence includes private medical records dated from 1998 to 2006 which show ongoing treatment for the Veteran's diabetes. These records show that this disability was treated with Glipizide. August 2004 records note that the Veteran was trying a low carbohydrate diet. These records do not contain any evidence that the Veteran was required to regulate his activities as a result of diabetes mellitus. The Veteran was provided with an August 2007 VA fee basis examination for his diabetes mellitus. He was noted to have first been diagnosed with diabetes four years earlier, and was started on medical treatment immediately. He was now completely asymptomatic. His last eye examination was two years ago, and he was told that he did not suffer from any diabetic eye disease. He had suffered from erectile dysfunction for five years. The Veteran denied any other complications, and he said he had never been hospitalized due to his diabetic disease. On examination, there was no skin disease, and a fundoscopy examination of the eyes was unremarkable. There were no signs of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer or atrophic skin changes. The pedal pulses were fully felt, and there was no specific peripheral nerve involvement. Diagnostic tests showed that the blood sugar level was 112. The urinanalysis and comprehensive metabolic panel showed some minor abnormalities that were not significant. The diagnosis was diabetes mellitus. The only likely complication was impotence. There were no activity restrictions due to his diabetes, and he did not have a non- diabetic condition that was aggravated by his diabetes. The Board finds that the evidence does not support entitlement to an evaluation in excess of 20 percent for the Veteran's diabetes mellitus. As noted above, diabetes mellitus that requires a restricted diet and either insulin or an oral hypoglycemic agent is evaluated as 20 percent disabling. The medical records show that the Veteran uses Glipizide and is on a low carbohydrate diet. However, in addition to these symptoms, a 40 percent evaluation requires regulation of activities. The Veteran's private medical records do not show that his physician has ever asked him to regulate his activities due to his diabetes mellitus, and there is no other evidence to show that the Veteran has regulated his activities. The August 2007 examination specifically states that there are no activity restrictions due to his diabetes. Therefore, the requirements for a 40 percent evaluation have not been met for any portion of the period on appeal, and continuation of the current 20 percent evaluation is warranted. The Board recognizes that Note 1 to 38 C.F.R. § 4.119, Code 7913 states that complications due to diabetes mellitus are to be evaluated separately. However, the August 2007 VA examination notes that the only complication is erectile dysfunction. As noted in the introduction, this matter has been referred to the RO for initial adjudication, should appellant desire to file a claim. The Board has also considered entitlement to an increased evaluation on an extraschedular basis, but application of extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (2009). There is no objective evidence that the Veteran's service connected diabetes mellitus presents such an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The Veteran denied ever being hospitalized for his diabetes mellitus at the August 2007 examination. This examination also notes that the Veteran works full time as a mechanical inspector, and that his diabetes mellitus has not significantly affected his work performance or daily living. Hence, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under the above-cited regulation, was not required. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to service connection for hepatitis C is denied. New and material evidence has not been submitted to reopen a claim for service connection for tinea cruris; the appeal is denied. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs