Citation Nr: 1301788 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 07-31 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1966 to April 1968, including service in combat in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the San Diego, California Regional Office, (RO) of the Department of Veterans Affairs (VA), that increased the rating for the Veteran's diabetes from 10% to 20%, and recognized retinopathy (rated 10%) and erectile dysfunction (compensated by an award of special monthly compensation (SMC)) as service connected compensable complications of the diabetes.. The case is now in the jurisdiction of the Oakland California RO. In April 2011 the case was before the Board (before another Veterans Law Judge (VLJ)) who remanded the matter for further development. [The VLJ who remanded the matter in 2011 has retired, and the case has been reassigned to the undersigned.] The Veteran did not disagree with the awards/ratings for retinopathy and erectile dysfunction, and those matters are not before the Board. FINDING OF FACT At no time during the appeal period is the Veteran's diabetes mellitus shown to have required regulation of activities in addition to a restricted diet and insulin; in February 2010 he was taken off insulin, but was continued on oral hypoglycemic agents separately rated complications other than retinopathy and erectile dysfunction are not shown. CONCLUSION OF LAW A rating in excess of 20 percent for type 2 diabetes mellitus is not warranted. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §4.119, Diagnostic Code (Code) 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to its initial adjudication. A July 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The letter also informed the Veteran of effective date criteria. It is not alleged that notice in this case was less than adequate. The Veteran's pertinent treatment records, including the VA treatment records since 1998, sought in the Board's April 2011 remand have been secured. The Board has reviewed the "Virtual VA" record (and found no pertinent records therein that are not associated with the claims files). The RO arranged for a VA examination in July 2006 (which the Board found less than adequate, and remanded the matter for another examination).. The May 2011 VA examination conducted in response is adequate for rating purposes as the examiner expressed familiarity with the record, and conducted a thorough evaluation, noting all findings necessary for a proper determination in the matter. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes outline the criteria for rating the various disabilities. 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 rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings may be appropriate in an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's type 2 diabetes mellitus with erectile dysfunction is currently rated 20 percent under Code 7913. To warrant the next higher, 40 percent, rating under this Code, the diabetes must be shown to require insulin, restricted diet, and regulation of activities [emphasis added]. A 60 percent rating for diabetes requires all the criteria for a 40 percent rating along 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; and a 100 percent rating is warranted when more than one daily injection of insulin , restricted diet, and regulation of activities are required, along 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 rated. Note (1), following Code 7913, provides that compensable complications of diabetes mellitus are rated 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 Code 7913. Regulation of activities is defined as avoidance of strenuous occupational or recreational activities. 38 C.F.R. § 4.119. An October 1968 rating decision granted service connection for diabetes mellitus (abnormal glucose tolerance test), rated 10 percent from April 6, 1968. The instant claim for increase was received in June 2006. He contends that a higher rating for his diabetes is warranted because his diabetes has progressed to the point that his physical activities are restricted due to his diabetes. A June 2005 VA treatment note reflects that the Veteran complained that his blood sugar was 200 - 300 for three days after he was changed to night shift when three people were fired at his job, which required him to work long hours. When he returned to his original schedule his blood sugar was 70 - 110 (fasting) and 130 - 150 (post prandial). He was counseled on exercises, diet, smoking and alcohol, and glyburide, metformin and rosiglitazone maleate were prescribed. The assessment was diabetes mellitus without complications of type 2. Subsequent VA treatment records dated in 2005 and 2006 show the Veteran's glucose levels were monitored and he continued on a restricted diet and medication for his diabetes including metformin. It was noted in a November 2005 VA pharmacy clinic report that insulin may need to be added to the Veteran's medications. In a May 2006 VA pharmacy clinic report, it was noted that he was agreeable to starting insulin. He reported that he was still not exercising much because he had been working long hours. He stated that he would be having some relief from work with new hires and planned to restart his exercise. On July 2006 VA examination the Veteran reported that he takes glyburide, rosiglitazone and metformin, and was recently started on insulin. He stated that he sees a doctor every three months. His blood sugar varies from 90 to 120; he had not had hypoglycemic attacks, hyperglycemia, ketoacidosis or weight gain or loss. He stated that he had never had hypertension, heart disease or cerebrovascular disease. He denied numbness and tingling in his toes and feet, but endorsed that he had had erectile dysfunction for the last four years. The examiner noted that the Veteran was working as an appliance salesman and the diagnosed disorders were not affecting his activities of daily living or employability. In January 2007 Veteran was seen in a VA outpatient clinic for follow-up of his diabetes mellitus. He claimed compliance with his medication, reported that he had not been exercising as much, and related that he continued to watch food portions and to stay away from pastas and bread. The assessment was type 2 diabetes, recently started on insulin in May 2006. On March 2007 VA outpatient clinic visit, he reported that his sugar fluctuated a lot last month, but he had since returned to walking and biking daily and his average sugar was 110 - 120. The assessment was type 2 diabetes mellitus requiring insulin, good control with insulin, metformin and avandia combination. It was noted that the Veteran wanted to exercise regularly since the weather was improving. He did not want any medication change. Further VA outpatient treatment reports dated in 2007 through 2010 show the Veteran's glucose levels were monitored, he still required insulin to control his diabetes, and he continued on a restricted diet. In February 2010 the Veteran was seen for follow-up at VA outpatient clinic, at which time his fasting sugar and A1C were normal. The physician noted that the Veteran was on a low dose of insulin and that she would take him off insulin as a trial, raise the dosage for metformin, continue avandia, and glyburide in the morning. He was to continue to monitor his blood sugar at home. In a May 2011 VA medication status report, the Veteran's diabetes medications did not include insulin. On May 2011 VA examination, the Veteran reported that medications for his diabetes mellitus include metformin, glyburide and lisinopril. He stated that rosiglitazone was discontinued in January 2011 due to side effect risk. He stated that he had taken insulin for several years (from 2006 to 2010), but it was discontinued due to adequate glucose control. He reported that he followed a diabetic diet and had tried to increase his exercise. He stated that he walked up to 9 to 10 miles per week and mowed his lawn at least three times per week for exercise. His weight had been stable since the diagnosis of diabetes in 1998. He visited his primary care provider for diabetes every three to four months. He had not been hospitalized for diabetes, hypoglycemia, or ketoacidosis. He stated that he had hypoglycemic episodes approximately twice per year with sugars as low as in the 60's with improvement upon ingestion of some carbohydrate. He retired from his job as a commissioned salesman approximately four years prior and mostly engaged in gardening, housework, and some recreational activities such as fishing and walking. He denied any restriction in his recreational activities to manage his diabetes. In relation to restrictions at his occupation due to the diabetes, he stated that he would have to time his breaks at work to avoid having a hypoglycemic episode. There had been no progressive loss of weight or strength caused by his diabetes. Diabetic retinopathy had been diagnosed. He has a history of hypertension, which was diagnosed in 2008. He denied a history of CVA or MI. He denied any history of diabetic nephropathy. He had erectile dysfunction, which had its onset approximately eleven years ago. He also has a history of onychomycosis of the toenails. He denied any bowel or bladder issues related to diabetes, and any history of peripheral neuropathy, burning, tingling or numbness in the hands or feet. Diagnostic studies showed that his diabetes control had improved over time from initial readings. The diagnoses were type 2 diabetes mellitus, erectile dysfunction, which is at least as likely as not a result of type 2 diabetes mellitus, diabetic retinopathy and history of onychomycosis of the toenails (which was treated and resolved). The criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive; each level of increase in the rating requires meeting additional criteria (which must all be met to warrant the increase). What distinguishes the schedular criteria for the current 20 percent rating assigned for the Veteran's diabetes from those for the next higher rating of 40 percent is that for the 40 percent rating, in addition to requiring diet and insulin for control, the diabetes must also require regulation of activities. "Regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities". See 38 C.F.R. § 4.119, Code 7913. The requirement of regulation of activities is not met when the Veteran's doctor has recommended increased exercise. See Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Here, while the Veteran's type 2 diabetes mellitus has required treatment with diet and insulin (from 2006 to 2010), the record does not show that at any time during the appeal period it has required regulation of activities. On July 2006 VA examination it was noted that the diabetes did not affect the Veteran's occupation or his daily activities; and no restriction of activities were reported at that examination or in earlier VA outpatient treatment reports. On May 2011 VA examination the Veteran denied any restriction in his recreational activities. And while he reported at the May 2011 VA examination that he worked as a salesman and would have to time his breaks to avoid having a hypoglycemic episode, such does not reflect that any health care professional had determined that regulation of the his activities was medically indicated. VA treatment records show (to the contrary) that he has been encouraged to exercise. Notably, in February 2010 the Veteran was taken off insulin (due to adequate glucose control), suggesting that the disability is improving rather than increasing in severity. . The Veteran and his representative contend that while VA examiner did not describe any restrictions of activities; the Veteran's diabetes has nonetheless progressed to the point that his physical activities are restricted. Such contentions, are inconsistent with the Veteran's own reports on May 2011 VA examination that he exercises by extensive walking (9 to 10 miles total per week) and mows his lawn at least three times per week for exercise, and that since his retirement he has engaged in gardening, housework, and recreational activities such as fishing and walking. Notably, he then denied any restriction in his recreational activities to manage his diabetes. The evidence does not show that the factor (regulation of activities) that distinguishes the criteria for the next higher, 40 percent, rating for diabetes from those for the current 20 percent rating for such disability was met at any time during the appeal period. Consequently, a 40 percent schedular rating is not warranted for any time during such period. The record also does not show that the Veteran has compensable complications of diabetes other than retinopathy and erectile dysfunction (which are separately rated or compensated and not for consideration herein). The Board has also considered whether referral of the matter for extraschedular consideration is indicated. There is no objective evidence, or allegation, suggesting that the disability picture presented by the Veteran's diabetes is exceptional or that schedular criteria are inadequate (the symptoms and impairment shown are all encompassed by the schedular criteria for the current rating assigned). See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, the Veteran is retired and has not alleged unemployability due to his diabetes. During a March 2007 VA outpatient mental health clinic follow-up visit, he reported that he was adjusting to retirement, but was glad to be retired. He stated that he was starting to redo his house and the first project was to clean out the garage. Earlier (on examination in 2006), it was specifically noted that the diabetes was not affecting occupational or recreational activities. Thus, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs