Citation Nr: 1611978 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 07-34 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an initial disability rating in excess of 10 percent prior to September 18, 2008, for diabetes mellitus Type II. 3. Entitlement to a disability rating in excess of 20 percent effective September 18, 2008, for diabetes mellitus Type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran, his spouse, and his son ATTORNEY FOR THE BOARD C.S De Leo INTRODUCTION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In January 2011, the Veteran testified before a Veterans Law Judge, seated at the RO. A transcript of this proceeding is of record. In April 2011 the appeal was remanded for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran likely has a low back disability that is attributable to his active military service. 2. Prior to September 18, 2008, the Veteran's diabetes mellitus did not require insulin and restricted diet or an oral hypoglycemic agent and restricted diet. 3. Beginning September 18, 2008, the Veteran's diabetes mellitus did not require insulin, restricted diet, and regulation of activities; however, he did begin taking oral medication as of that date. CONCLUSIONS OF LAW 1. The Veteran has a low back disability that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). 2. The criteria for a rating in excess of 10 percent for diabetes mellitus prior to September 18, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code (DC) 7913 (2015). 3. The criteria for a rating in excess of 20 percent for diabetes mellitus from September 18, 2008, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code (DC) 7913 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has certain duties to notify and assist a claimant. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, VA's duty to notify was satisfied through a notice letter dated in March 2006 that informed the Veteran of his duty and VA's duty for obtaining evidence and the process by which disability ratings and effective dates are assigned. For increased rating claims, the VCAA requires only 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. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's identified records have been obtained and associated with the claims file. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Additionally, VA examinations were performed in in April 2006, December 2009, March 2011, and June 2015 that includes consideration of the Veteran's medical history and sets forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2015). Accordingly, the duty to assist is satisfied. In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error has been committed in discharging VA's duties to notify and assist. II. Analysis Service Connection for a Back Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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. 38 C.F.R. § 3.303(d) (2015). In order to establish service connection for the claimed disorder, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Although medical evidence is generally required to establish a medical diagnosis or to address other medical questions, lay statements may serve to support claims by substantiating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (lay evidence is potentially competent to establish the presence of disability even where not corroborated by contemporaneous medical evidence); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (in some cases, lay evidence will be competent and credible evidence of etiology). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Veteran asserts that his back disability is attributable to military service. Specifically, he asserts that in 1967 he fell while walking on wet, slippery steps and injured his back. See April 2006 VA Form 21-4138; August 2015 Notice of Disagreement. The Veteran has been diagnosed as having lumbar strain and spondylosis with sciatica, satisfying the first element of a service connection claim. Shedden, 381 F.3d at 1166-67; see March 2005 Valley Industrial Family Medical Group private treatment records; January 2006 Fresno VA Medical Center treatment records; May 2011 VA Examination. The Veteran's service treatment records (STRs) note that he was treated for back pain in April 1967 at the U.S. Army Hospital Ft. Campbell. His September 1967 separation examination notes "one episode of lumbosacral distress with no recurrence" and the Veteran also checked "yes" indicating recurrent back pain. Private treatment records dated from March 2005 through September 2005 note a diagnosis of lumbosacral strain and back pain related to a back injury that occurred at the Veteran's job. According to a September 2005 private examination report, the Veteran denied any prior back history and any back treatment prior to a slip and fall that occurred earlier during the year; however, the examination report also notes the preexistence of spondylosis of the lumbar spine that was currently treated by the Veteran's private physician. The examiner diagnosed preexistent spondylosis and spondylolisthesis at L5-S1 noting an episode of symptomatic back treatment in April 2005 that was treated and cured. See Valley Industrial Family Medical Group private treatment records. A March 2009 VA treatment record shows x-rays of the spine identified lumbar strain and spondylolisthesis. See March 2009 Fresno VA Medical Center treatment records. Additionally, April 2006 and March 2011 VA examination reports for diabetes mellitus and peripheral neuropathy note that the Veteran reported having developed back pain while completing tasks at work. During the January 2011 travel Board hearing, the Veteran testified that the onset of his back disability occurred in approximately April 1967 during active military service when he slipped and fell landing on his buttocks. See Hearing Transcript at 10. He also stated that he had continued to experience symptoms to include back pain since that time. See April 2006 VA Form 21-4138. The Veteran is competent to discuss observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, his STRs show that he was treated for back pain and his separation examination also documents his report of having had recurrent back pain during service. The Board finds his testimony of record is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran underwent a VA examination in June 2015 to determine the nature and etiology of his back disability. After interviewing and conducting an examination of him, the examiner opined that it is at least as likely as not that the Veteran's current back condition is a result of military service when he slipped and fell. As noted above, the competent medical evidence has established that the Veteran carries a current diagnosis of lumbosacral strain, spondylosis, and spondylolisthesis. The Board acknowledges that the September 2005 private treatment records reflect that the Veteran denied any prior back history and any back treatment prior to a slip and fall that occurred earlier during the year. Importantly, the Board notes that the examination report also notes the preexistence of spondylosis of the lumbar spine that was currently treated by the Veteran's private physician. Further, the positive opinion of the June 2015 VA examiner, although scant, is probative evidence in support of the Veteran's claim. There is no medical or lay evidence to contradict the examiner's finding. The preponderance of the evidence is in favor of the Veteran's claim. Consequently, and given that the Veteran is diagnosed with a low back disability and that he has credibly reported that the symptoms of his back disability began in service and have continued to the present, the Board finds that it is as likely as not that the Veteran's currently diagnosed low back disability is traceable to military service. With resolution of reasonable doubt in the Veteran's favor, service connection for a low back disability is granted. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a Higher Rating The Veteran has been awarded separate disability ratings for diabetic peripheral neuropathy of the upper and lower extremities, as well as special monthly compensation for loss of use of a creative organ. At no time has the Veteran expressed dissatisfaction with the ratings assigned for those disabilities. Indeed, the RO has confined its analysis of the diabetes increased rating appeal to consideration if Diagnostic Code 7913. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the Court extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." A. Entitlement to an Initial Disability Rating in excess of 10 Percent Prior to September 18, 2008, for Diabetes Mellitus The Veteran's diabetes is evaluated under DC 7913. 38 C.F.R. § 4.119. Pursuant to DC 7913, a rating of 10 percent is assigned for diabetes that is manageable by restricted diet only. A rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes 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. A 100 percent rating is warranted when the diabetes 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. Because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In addition, a 40 percent rating under DC 7913 requires medical evidence that occupational and recreational activities have been restricted by diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2007). Note 1 to DC 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under DC 7913. Upon review of all the evidence of record, lay and medical, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for diabetes prior to September 18, 2008. Historically, the Veteran was assigned an initial 10 percent disability evaluation for diabetes effective January 31, 2006. See August 2006 Rating Decision. An evaluation of 20 percent was assigned effective September 18, 2008, based on the date the Veteran was first prescribed glyburide, an oral hypoglycemic agent. See December 2008 Supplemental Statement of the Case. Medical evidence of record includes an April 2006 VA examination, a December 2009 VA examination, a March 2011 VA examination, and VA treatment records dated from September 2005 through June 2015. At the April 2006 VA examination, the examiner noted that the Veteran was recently diagnosed as having diabetes mellitus and that his current treatment included a restricted diet. It was also noted that he had not been on oral treatment or insulin. The examination report acknowledges a December 2005 Agent Orange examination where laboratories confirmed a glucose test of 163 mg/dl. It was noted that the Veteran did not have any complications to include proteinuria or renal disease, erectile dysfunction, neuropathy, nor had he suffered a stroke or myocardial infarction. The examiner diagnosed diabetes mellitus, type II, without medication, and with adequate glycemic control. See also December 2005 Fresno VA Medical Center Agent Orange Program Note. A September 2008 VA treatment record notes the Veteran was prescribed glyburide, an oral medication, to treat diabetes. See Fresno VA Medical Center treatment records. Upon review of the evidence, the Board finds that, prior to September 18, 2008, the Veteran's diabetes was manageable by restricted diet only, did not require insulin and restricted diet or an oral hypoglycemic agent and restricted diet until September 18, 2008. Thus, a rating in excess of 10 percent for this time period is not warranted. See 38 C.F.R. § 4.119. B. Entitlement to an Initial Disability Rating in excess of 20 Percent from September 18, 2008, for Diabetes Mellitus The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for diabetes from September 18, 2008. Of record is correspondence dated in November 2006 from Dr. R.C., a private clinician with Hanford Family Practice Medical Associates. According to Dr. C., the Veteran has a history of diabetes controlled by diet. In a December 2009 VA examination for peripheral neuropathy, the examiner noted that the Veteran's current treatment for diabetes involved taking tablets but no insulin. In a March 2010 VA mental health examination, the examiner similarly noted that the Veteran's current treatment involved taking oral medication to include glyburide. A March 2011 VA examination shows that the Veteran's current diabetic treatment included taking glyburide daily. No side effects were noted. The Veteran denied a history of hospitalization or episodes of hypoglycemia reaction or ketoacidosis and visited his treating physician three times a year. The examiner noted that the Veteran had been instructed to follow a restrictive diet, but did not require regulation of activities as part of medical management of the diabetes mellitus disability. In so finding, the examiner also noted that the Veteran's claims file was not available for review for the purposes of the current examination. Nonetheless, the examiner explained that the Veteran had been receiving treatment at the Fresno VA Medical Center, and treatment records to include prior VA examinations were available via the Computerized Patient Record System and were reviewed in detail. VA treatment records during the rating period on appeal reflect adequate glucose level testing but do not show that the Veteran had a history of hospitalization or episodes of hypoglycemia reaction or ketoacidosis nor was the Veteran shown to be restricted in the ability to perform strenuous activities. As discussed above, treatment records note the Veteran to have been prescribed an oral hypoglycemic agent for his diabetes disability. Additionally, the March 2011 VA examiner noted that the Veteran did not require regulation of activities as part of medical management of the diabetes mellitus disability. It was further noted that he Veteran visited his diabetic care provider less than two times per month and the Veteran denied a history of hospitalization. Additionally, progressive, unintentional weight loss and loss of strength attributable to diabetes is not noted. Upon review of the evidence, the Board finds that a rating in excess of 20 percent is not warranted for the rating period beginning September 18, 2008 as the Veteran's diabetes did not require insulin or regulation of activities. See 38 C.F.R. § 4.119. Additionally, the Board has considered the Veteran's statements that a higher disability rating is warranted for his diabetes mellitus disability. In this case, the Veteran is competent to report his symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners who examined him during the current appeal and who have provided relevant medical findings in conjunction with the examinations. In this regard, the medical findings (as provided in the examination reports) directly address the criteria under which his disability is evaluated. Accordingly, the Board concludes that the medical findings on examination are of greater probative value than the Veteran's assertions regarding the severity of his diabetes mellitus disability. For these reasons, the Board finds that the weight of the evidence is against an initial rating for type II diabetes mellitus in excess of 20 percent from September 18, 2008. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. III. Additional Consideration The Board also has considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111(2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's diabetes mellitus is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. A comparison between the level of severity and symptomatology of the Veteran's symptoms with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the disability and contemplate the Veteran's oral medication and a restricted diet, without the use of insulin or restriction of activities. Therefore, the Board finds that the record does not reflect that the Veteran's diabetes mellitus is so exceptional or unusual as to warrant referral for consideration of the assignment of a higher rating on an extra-schedular basis. In the absence of these factors, the Board finds that the requirements for a referral for consideration of the assignment of an extraschedular evaluation for the Veteran's disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for a low back disability is granted, subject to the laws and regulations governing the payment of monetary benefits. An initial disability rating in excess of 10 percent prior to September 18, 2008, for diabetes mellitus Type II is denied. A disability rating in excess of 20 percent since September 18, 2008, for diabetes mellitus Type II is denied. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs