Citation Nr: 0809814 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-00 514 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. 2. Entitlement to service connection for bilateral hearing loss disability. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the entire period of the claim, the veteran's diabetes mellitus has been treated with oral medication and a restricted diet; it has not required regulation of his activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in an October 2003 letter, which was issued prior to the decision on appeal, as well as in a March 2006 letter, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence he has in his possession that pertains to the claim. The March 2006 letter advised the veteran of the evidence needed to establish a disability rating and effective date. The claim was last readjudicated in May 2006. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service treatment records and post-service medical records and examination reports. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection for diabetes mellitus. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. 473, 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claim for service connection, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, 18 Vet. App. 112; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the claim, any question as to an effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities. 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. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In addition, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.) is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, service connection for diabetes mellitus was granted in a January 2004 rating decision. A 20 percent disabling rating was assigned pursuant to Diagnostic Code 7913, and the rating was made effective on August 25, 2003. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The next higher rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Diabetes mellitus requiring insulin, restricted diet and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated warrants a 60 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). The medical evidence demonstrates that the veteran's diabetes is managed by diet and oral medication. There is no restriction on the veteran's activities. Specifically, a May 2003 VA medical record notes that the veteran was instructed to avoid eating foods high in cholesterol and fat because it is important for diabetic patients to keep their low density lipoprotein level below 100. Additionally, the February 2005 VA exam report states that the veteran is on both a diabetic diet and the medication Metformin. The examiner further stated that the veteran has no restrictions on his activities; in fact, he has been encouraged to be active and exercise, which he says he is going to do when the weather gets better. Moreover, there is no medical evidence of ketoacidosis or hypoglycemic reactions requiring hospitalization. In sum, the evidence shows that the veteran's diabetes mellitus is appropriately rated as 20 percent disabling throughout the period of the claim. Because the evidence in this case is not approximately balanced with regard to this issue, the benefit-of-the-doubt doctrine does not apply, and the claim for a higher initial rating for diabetes mellitus must be denied. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the veteran has not required frequent hospitalization for this disability and the manifestations of this disability are not in excess of those contemplated by the schedular criteria. In addition, there is no other indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the assigned evaluations. Therefore, referral of this case for extra-schedular consideration is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. REMAND The veteran has claimed service connection for bilateral hearing loss disability. VA medical records dated in June 2003 indicate that the veteran has mild to severe sloping high frequency sensorineural hearing loss in the right ear and severe to profound high frequency sensorineural hearing loss in the left ear. Service records indicate that the veteran's military occupational specialty (MOS) was in basic field artillery. While there is no evidence of hearing loss in service or until many years thereafter, the veteran has never undergone a VA examination to determine whether he has hearing loss disability for VA purposes, and if so, whether it is etiologically related to his active military service. Therefore, the Board is of the opinion that a VA examination is in order. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should arrange for the veteran to be afforded an audiological examination to determine the etiology of any currently present hearing loss disability. The claims folder, to include a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies and tests should be accomplished, and all clinical findings should be reported in detail. The examiner should state whether the veteran has hearing loss disability for VA purposes. If the veteran is found to have hearing loss disability for VA purposes, then, based upon the examination results, review of the veteran's pertinent medical history (to include a complete review of the veteran's service medical records), and with consideration of sound medical principles, the examiner should provide an opinion with respect to whether there is a 50 percent or better probability that the veteran's hearing impairment is etiologically related to his active military service. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 2. The RO or the AMC should undertake any other indicated development. 3. Then, the RO or the AMC should adjudicate the veteran's claim based on a de novo review of the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs