Citation Nr: 0809830 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-30 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, Type II. 2. Entitlement to an assignment of an initial increased rating for diabetes mellitus, type II, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran had over 20 years active duty service ending in December 1976. This matter comes to the Board of Veterans' Appeals (Board) from a December 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2005, a statement of the case was issued in August 2005, and a substantive appeal was received in September 2005. The veteran's notice of disagreement also expressed a desire to appeal a denial of service connection for circulation problem, left and right leg. However, by rating decision in July 2005, service connection for these disabilities was granted. . FINDINGS OF FACT 1. Hypertension was not manifested during service, or within one year of discharge from service, nor is hypertension otherwise related to such service, or to the veteran's service-connected diabetes mellitus, Type II. 2. The veteran's service-connected diabetes mellitus, Type II, requires an oral hypoglycemic agent and a restricted diet, but does not require regulation of activities. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have been incurred in or aggravated by such service, nor is hypertension proximately due to or caused by a service- connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 2. The criteria for assignment of an initial rating in excess of 20 percent for diabetes mellitus, Type, II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The initial notification in this case was accomplished by way of a letter from the RO to the veteran dated in April 2004. This letter dealt with claims for service connection. In March 2006, the veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to service connection for hypertension, any questions as to the appropriate disability rating for the service connection claim and effective dates to be assigned are rendered moot. With regard to the diabetes rating issue, the March 2006 letter appears to have furnished appropriate notice regarding the manner of assigning disability ratings and effective dates. Both issues were subsequently readjudicated as evidenced by supplemental statements of the case. At this point the Board acknowledges that for an increased- compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05-0355, (U.S. Vet. App. January 30, 2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, slip op. at 5-6. In this case there has clearly been no compliance with Vazquez since that judicial decision was just rendered in January 2008. However, after reviewing the claims file the Board finds no resulting prejudice to the veteran. It appears clear to the Board that a reasonable person under the facts of this case could be expected to know and understand the types of evidence necessary to show a worsening or increase in the severity of diabetes mellitus, type II, and the effect of that worsening on employment and daily life. The Board believes it significant that the veteran has been represented in the claims process by Disabled American Veterans, which organization represents numerous veterans. The Board believes it reasonable to expect that this service organization duly informs the claimants of the rating criteria and the types of evidence necessary to obtain higher ratings for service-connected disabilities. In fact, the veteran's March 2005 statement includes assertions as to the types of evidence necessary to show a worsening or increase in the severity of diabetes mellitus, type II. The Board finds that the veteran has had actual knowledge of the elements outlined in Vazquez and that no useful purpose would be served by remanding to the RO to furnish notice as to elements of his claim which the veteran has already effectively been made aware of. Such action would not benefit the veteran. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The evidence of record contains the veteran's service medical records, post-service private medical records, and post- service VA medical records. The evidence of record also contains reports of VA examinations performed in October 2004 and March 2007. The examination reports obtained are thorough and contain sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. Hypertension Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Additionally, 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. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service- connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The veteran has claimed entitlement to service connection for hypertension, as secondary to his service-connected diabetes mellitus, Type II. Service connection is in effect for diabetes mellitus, Type II, rated 20 percent disabling effective April 23, 2003. A September 1956 service examination performed for induction purposes reflects the veteran's blood pressure reading as 126/76. On service examination performed for separation purposes in August 1976, the veteran's blood pressure reading was 144/82. Service medical records do not reflect a diagnosis of hypertension. Private medical records from Navcare dated in August 1988 reflect an initial assessment of hypertension. The veteran underwent a VA examination in October 2004. The examiner noted that the veteran had hypertension. However, he had no nonvascular complications such as: no gastroparesis, no sexual dysfunction, no cerebrovascular disease and no coronary artery disease, no neuropathy, no eye disease with the exception of hypertension, and no heart disease. No arteries and veins were involved. There were no cardiovascular problems, retinopathy, skin diseases, or lesions on the extremities. The monofilament test was perceived within normal limits. Hemoglobin was within normal limits. Evaluation of the kidney revealed no evidence of any nephropathy. Blood urea nitrogen (BUN) was within normal limits, as was the ratio between BUN and creatine. The creatine level was within normal limits and urinalysis showed no evidence of any abnormality, and no proteinuria. The examiner noted that vascular complications, microvascular and macrovascular complications were very well known to be subject to diabetes mellitus. However, the kidneys appeared to be within normal limits and there was no evidence for nephropathy as a result of renal artery stenosis. For that reason, the examiner believed that the hypertension was not as likely as not due to diabetes mellitus. The veteran underwent another VA examination in March 2007. The examiner noted that the veteran had vascular problems in the form of hypertension. The examiner noted that the hypertension was diagnosed coincident with the diabetes. Therefore, the examiner did not believe the two to be related. As set forth above, the veteran seeks service connection for hypertension. Although VA medical treatment records reflect a current diagnosis of hypertension, there is no medical evidence to support that the disability is due to his active service or any incident therein. In addition, although hypertension is among the chronic diseases subject to presumptive service connection under the provisions of § 3.307(a), there is no medical evidence of record to show that the veteran's hypertension was manifested to a compensable degree within the one-year presumptive post- service period. Physical examinations performed during active service which reflect the veteran's blood pressure readings do not evidence high blood pressure or a diagnosis of hypertension. Navcare treatment records reflect an assessment of hypertension in August 1988. Accordingly, a diagnosis of hypertension was rendered nearly 12 years after separation from service. There is no medical evidence to support an etiological relationship to his period of active service. The veteran has also claimed that his hypertension developed due to his service-connected diabetes mellitus, Type II. However, the October 2004 and March 2007 VA examiners opined that the veteran's hypertension was not related to his diabetes mellitus, Type II. There is otherwise no medical evidence of record to support an etiological relationship, and the veteran has not been shown to have the medical expertise necessary to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In summary, there is no probative evidence of hypertension in service. Moreover, there is no probative evidence of a nexus between the veteran's hypertension and his period of active duty service, nor is there medical evidence of a causal relationship, between the veteran's hypertension and his service-connected diabetes mellitus, Type II. Thus, service connection for hypertension is not warranted. This is a case where the preponderance of the evidence is against the claim and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes Mellitus, Type II Criteria & Analysis A December 2004 rating decision granted service connection for diabetes mellitus, and assigned a 20 percent disability rating under Diagnostic Code 7913, effective April 23, 2004. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 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 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet.App. 119 (1999). The veteran's service-connected diabetes mellitus, Type II, has been rated by the RO under the provisions of Diagnostic Code 7913. Under this regulatory provision, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; and a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. It is clear from the record, and VA has acknowledged in previous rating decisions, that the veteran requires an oral hypoglycemic agent to regulate his diabetes and that he is on a restricted diet due to his diabetes. The determinative question in this appeal for a higher rating is whether there is a showing that the veteran's activities are regulated as part of the medical treatment prescribed for his diabetes. VA treatment records from throughout the appeal period contain numerous references to prescribed treatments for the veteran's diabetes. A June 2006 VA treatment report shows a treatment plan for the veteran's diabetes that featured diet restrictions, but makes no indication of regulation of activities. The veteran underwent a VA examination in March 2007. The examiner noted that the diabetes treatment was diet plus glyburide and some exercise. It was noted that the veteran's diet was restricted for diabetic and low-cholesterol diet. It was also noted that the veteran had minimal restriction of his activities solely on the basis of diabetes. However, he had to restrict his activities a great deal on the basis of complication of diabetes, which was peripheral vascular disease. The Board notes here that separate disability evaluations have been assigned for peripheral vascular disease of each lower extremity, and those ratings already contemplate the resulting impairment. To consider the impairment of the lower legs again in considering the proper rating for the separately service-connected diabetes would effectively amount to pyramiding. See 38 C.F.R. § 4.14. It is clear from the record that the veteran experiences significant difficulties from multiple disabilities, including service-connected disabilities. The Board sympathizes with the veteran and understands fully the contention advanced by him that his diabetes mellitus, Type II, is more severe than the currently assigned rating reflects. The veteran, as a lay person, is competent to provide evidence regarding symptomatology, but is not competent to provide evidence determining the etiology or clinical severity of a medical disability; the Board must rely upon the conclusions of medical experts regarding etiology and clinical severity. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In this case, there is simply no medical evidence showing that management of the veteran's diabetes mellitus, Type II, as prescribed by doctors, requires medical regulation of activities. In light of the foregoing evidence, the Board finds that the veteran has been properly rated for his diabetes mellitus, Type II, and there is no basis for assignment of a disability rating in excess of 20 percent. The Board again emphasizes that although the veteran requires an oral hypoglycemic agent and a restricted diet, there is no persuasive evidence that the veteran's activities have been regulated by medical professionals in managing his diabetes mellitus, Type II. As such, the veteran meets the criteria for a 20 percent rating under 38 C.F.R. § 4.119, Diagnostic Code 7913. In the absence of persuasive evidence of regulation of activities, there is simply no basis for a higher rating at this time. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service- connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Service connection for hypertension as secondary to the service connected disability of diabetes mellitus, type II, is not warranted. An evaluation of initial increased rating in excess of 20 percent for diabetes mellitus, type II, is not warranted. The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs