Citation Nr: 1441196 Decision Date: 09/16/14 Archive Date: 09/22/14 DOCKET NO. 10-03 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for the Veteran's diabetes mellitus, type II with erectile dysfunction (diabetes). 2. Entitlement to an initial evaluation in excess of 10 percent for the Veteran's bilateral peripheral neuropathy of the lower extremities. 3. Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to August 1970. His decorations for his active duty service include a Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. An August 2007 rating decision denied an increased evaluation for diabetes and granted service connection for peripheral neuropathy of the bilateral lower extremities with initial evaluations of 10 percent disabling. An April 2008 rating decision denied the Veteran's claim to reopen his previously denied claim of entitlement to service connection for hepatitis C finding that the evidence submitted was not new and material. The issues of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, and the proper evaluation for adenocarcinoma of the prostate it appears have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ) (if needed). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's diabetes required insulin and restricted diet. 2. Throughout the period on appeal, the Veteran's peripheral neuropathy of the bilateral lower extremities was manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. A May 2006 rating decision denied a claim for entitlement to service connection for hepatitis C, finding that hepatitis C was not diagnosed in service and that the Veteran did not have any risk factors for hepatitis C. 4. The evidence associated with the claims file subsequent to the May 2006 rating decision relates to an unestablished fact necessary to establish the claim and raises a reasonable possibility of substantiating the claims for service connection for hepatitis C. 5. Giving him the benefit of the doubt, the Veteran has hepatitis C that is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for the Veteran's diabetes have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.119, Diagnostic Code 7913 (2013). 2. The criteria for initial evaluations in excess of 10 percent for the Veteran's peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8520 (2013). 3. The May 2006 rating decision that last denied service connection for hepatitis C is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103 (2013). 4. New and material evidence having been received, the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156 (2013). 5. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for hepatitis C have been met. 38 U.S.C.A. §§ 1110, 1507 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2013). 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. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Veteran was afforded a VA diabetes examination in June 2007. The Veteran reported that he was diagnosed with diabetes in 2000. He reported rare hypoglycemic reactions manifested by irritability, sweating and shaking. He denied a history of ketoacidosis or hospitalization. He reported that he was on a low-carbohydrate, high-protein diet. He denied restrictions on activities and he reported taking medications including insulin. He also reported a one-year history of a tingling and burning sensation in his left foot and occasionally his right foot. He reported a diagnosis of prostate cancer in 2000 and erectile dysfunction. Upon physical examination, the examiner noted that the Veteran's sensation was decreased to sharp and dull touch sensation in both lower extremities and a monofilament test was abnormal to both feet. The examiner diagnosed diabetes mellitus type 2, and peripheral neuropathy secondary to diabetes mellitus. The Veteran was afforded another VA diabetes examination in December 2013. The examiner reviewed the Veteran's claims file. The Veteran reported he required more than 1 injection of insulin a day. He reported no regulation of activities. He reported that he visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than 2 times per month. He also reported intermittent numbness in the lower extremities which sometimes feels like "he is on sand paper." Upon physical examination, the Veteran's deep tendon reflexes were 2/4 bilaterally for the lower extremities. He had decreased in vibratory sensation of the lower bilateral extremities with minimal functional impairment. He had mild numbness in the bilateral lower extremities. A review of the post-service VA treatment records and private treatment records shows treatment for diabetes and peripheral neuropathy. There is no evidence that the Veteran's diabetes and associated complications were controlled in any other way than those reported in the VA examinations. Diabetes For the period on appeal, the Veteran has been assigned a 20 percent initial evaluation for diabetes with associated erectile dysfunction. He has asserted that his diabetes warrants a higher evaluation. Diabetes mellitus is evaluated under Diagnostic Code 7913. A 20 percent evaluation is warranted for diabetes requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent evaluation is warranted for diabetes 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 schedular maximum 100 percent evaluation is warranted for diabetes 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Note 1 to Diagnostic Code 7913 provides 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board finds that an evaluation in excess of 20 percent for diabetes is not warranted. The next highest evaluation of 40 percent disabling is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. The VA examinations specifically note that while the Veteran's diabetes requires insulin and a restricted diet, his diabetes does not require regulation of activities. The Veteran, in the November 2013 DRO hearing, testified that he only requires insulin and restricted diet, and not regulation of activities, providing persuasive evidence against this claim. Thus, the Board finds that a higher evaluation for diabetes is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913. Peripheral Neuropathy The Veteran's bilateral lower extremity peripheral neuropathy has been evaluated under Diagnostic Code 8520 for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, disability evaluations of 10, 20, 40 and 60 percent are assignable for incomplete paralysis of the sciatic nerve, which is mild, moderate, moderately severe, or severe with marked muscular atrophy, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A schedular maximum evaluation of 80 percent disabling is warranted for complete paralysis of the sciatic nerve, as manifested by: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. After a review of the evidence of record, the Board finds that the Veteran's peripheral neuropathy of the bilateral lower extremities is productive of no more than mild impairment in either foot. Both VA examinations indicate mild symptoms. The Veteran specifically reported in both that his symptoms included mild intermittent numbness. The most recent VA examination indicated decrease in vibratory sensation, which was indicative of mild functional impairment. Therefore, the Board finds that an evaluation in excess of 10 percent is not warranted. Consideration has been given to evaluating the Veteran's peripheral neuropathy under a different Diagnostic Code. However, the Diagnostic Codes that pertain to the foot and lower extremities evaluate a mild impairment as either noncompensable or 10 percent disabling. Accordingly, regardless of which nerve is affected, the Veteran's symptoms do not warrant a higher evaluation as his symptoms are indicative of a mild impairment. A remand to determine which specific nerve is affected may, in fact, provide evidence against the Veteran's claim and find that a noncompensable evaluation is warranted. Giving the Veteran the benefit of the doubt, the Board finds that Diagnostic Code 8520 is appropriate for evaluating the Veteran's symptoms. Consideration has been given to assigning staged ratings; however, at no time during the period in question has the Veteran's peripheral neuropathy warranted higher schedular ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Extraschedular Evaluations The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (2013). The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the Veteran's diabetes and bilateral lower extremity peripheral neuropathy are contemplated by the schedular criteria. There is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for these disabilities. In sum, there is no indication that the average industrial impairment from the Veteran's combined disability picture would be in excess of that contemplated by the assigned ratings. Accordingly, the Board has determined, that referral of this case for extra-schedular consideration is not in order. The Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Veteran has reported symptoms including decreased senses of vibration and touch in his lower extremities, diabetes requiring insulin and restriction of diet for control and erectile dysfunction. These symptoms have all been specifically attributed to his service-connected diabetes and bilateral lower extremity peripheral neuropathy. See Mittleider v. West, 11 Vet. App. 181 (1998). As there are no additional symptoms at issue in this case that have not been attributed to a specific-service connected condition, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. New and Material Evidence The Veteran filed a request to reopen the claim of entitlement to service connection for hepatitis C in July 2006. In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been received, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). "New" evidence is defined as evidence not previously received by agency decision-makers. "Material" evidence means 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) (2013). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the last final May 2006 denial, evidence of record included service treatment records, VA treatment records and private treatment records. The claim was denied because the Veteran did not meet any of the hepatitis C risk factors. Since the previous May 2006 denial, evidence added includes the Veteran's statements and testimony that while in combat he handled dead bodies and had accidental exposure to blood analogous to that of a health care worker (to include combat medic or corpsman). Accordingly, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for hepatitis C is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran has a current diagnosis of hepatitis C. The Veteran has not been afforded a VA examination to determine the nature and etiology of his hepatitis C. The Veteran reports that he likely contracted hepatitis C through combat when he had accidental blood exposure from handling dead bodies and from his presence in the combat area. The Veteran is the recipient of a Combat Action Ribbon. His combat service is confirmed. There is no reason for the Board to question the credibility of the Veteran's statements. This fact is a serious risk factor for this disability. In light of the above, the Veteran will be granted the benefit of the doubt. The claim is granted. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board notes that it has granted in full the Veteran's claim to reopen his previously denied claim for entitlement to service connection for hepatitis C. Accordingly, a discussion of the VCAA as it applies to this issue is unnecessary. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Board finds that the VA RO fulfilled this duty to notify in multiple letters including June 2007, December 2007 and November 2008. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records and private treatment records, the Veteran's testimony and the Veteran's statements. The Veteran has also been afforded adequate examinations. VA provided the Veteran with examinations in June 2007 and December 2013. As discussed above, the examinations were more than adequate. The Veteran's history was taken, and complete examinations were conducted. The examination reports and opinions were given by experienced physicians who had thoroughly reviewed the Veteran's claims file. Therefore, the Veteran has been afforded adequate examinations on the issues of entitlement to increased evaluations for diabetes and bilateral lower extremity peripheral neuropathy. Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional evidence that is necessary for a fair adjudication of the claim that has not been obtained. Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An evaluation in excess of 20 percent for diabetes is denied. Initial evaluations in excess of 10 percent for bilateral lower extremity peripheral neuropathy are denied. New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is reopened. Service connection for hepatitis C is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs