Citation Nr: 0811791 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 03-14 497 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial increased rating for diabetes mellitus, type II, currently evaluated as 20 percent disabling. 2. Entitlement to an effective date earlier than January 16, 2001 for the grant of service connection for diabetes mellitus, type II. 3. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for a back disability. 4. Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for pericarditis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from October 1964 to September 1967 and from August 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating actions of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. In particular, by a January 2002 decision, the RO granted service connection for diabetes mellitus, type II, with peripheral neuropathy and awarded a compensable evaluation of 20 percent, effective from January 16, 2001, for this disorder. [During the current appeal, and specifically by a January 2003 determination, the RO granted separate 10 percent ratings for the diabetic neuropathy of the veteran's left lower extremity and for the diabetic neuropathy of his right lower extremity, effective from January 16, 2001. As the veteran did not initiate an appeal with regard to these separate ratings, and as he has in fact perfected appeals only for the initial evaluation awarded to his service-connected diabetes mellitus and the effective date assigned for the grant of service connection for this disorder, these latter two issues are the only claims, pertinent to his diabetes, that are currently in appellate status before the Board at this time.] The current matter also comes before the Board on appeal from an August 2002 rating action in which the RO determined that new and material evidence sufficient to reopen previously denied claims for service connection for a back disability and for pericarditis had not been received. The issues of whether new and material evidence has been received sufficient to reopen previously denied claims for service connection for a back disability and for pericarditis are addressed in the REMAND portion of the decision below and are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Diabetes mellitus, type II, does not require regulation of the veteran's activities. 2. The veteran was discharged from active military service in December 1971; VA first received his claim for service connection for diabetes mellitus on January 16, 2001. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 20 percent for the service-connected diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). 2. An effective date prior to January 16, 2001, for the grant of service connection for diabetes mellitus, type II, is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties To Notify And To Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2006)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide and must ask the claimant to provide any evidence in his/her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). VCAA notice is not required in every case, however. The United States Court of Appeals for Veterans Claims (Court) recently held, for example, that such notice is not required under circumstances where a claim for service connection is granted, a rating and effective date are assigned, and the claimant files an appeal as to the initially assigned rating or the effective date for the grant of service connection. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006) (in which the Court held that, "[i]n 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"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the veteran's increased rating and earlier effective date claims essentially fall within this fact pattern. Following receipt of notification of the January 2002 grant of service connection for diabetes mellitus, type II, the veteran perfected a timely appeal of the initially assigned 20% rating for this service-connected disability and of the effective date for the grant of service connection for this disorder. Consequently, no section 5103(a) notice is required for the veteran's increased rating and earlier effective date claims. As section 5103(a) no longer applies to the veteran's appeal-including in particular his increased rating claim-the additional notification provisions for increased rating claims recently set forth by the Court are not applicable in the present case. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the veteran has been provided with various communications [including the January 2002 notification of the rating decision dated earlier that month, an April 2003 statement of the case (SOC), and a supplemental statement of the case (SSOC) issued in June 2007] that contain notice of VA's rating communication, his appellate rights, a summary of relevant evidence, citations to applicable law (diagnostic code), and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development is required. Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist provisions of the VCAA have been fulfilled with respect to the increased rating and earlier effective date issues on appeal. All relevant treatment records adequately identified by the veteran have been obtained and associated with his claims folder. He has been accorded pertinent VA examinations. In this regard, the Board notes that the veteran failed to report for VA examinations scheduled to evaluate his diabetes mellitus in May 2007 and June 2007. When a claimant fails to report for an examination in conjunction with an original compensation claim, the claim shall be based on the evidence of record. 38 C.F.R. § 3.655 (2007). At no time during the current appeal has the veteran explained the reasons for his failure to report to the May 2007 and June 2007 VA examinations. In a February 2008 statement, the veteran's representative asserted that the veteran was not informed of the consequences of his failure to report for the scheduled VA examinations under 38 C.F.R. § 3.655 and that, therefore, his appeal should be remanded to accord him an opportunity to report for another VA examination and to notify him of any failure to report for such an evaluation. Significantly, however, as the Board will discuss in the following decision, the RO has obtained contemporaneous outpatient treatment records which consistently demonstrated that the veteran's activities have not been restricted as a result of his diabetes. As such, the criteria for the next higher rating of 40 percent for this service-connected disability have not been met. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). In light of these facts, the Board finds that no further development on VA's part is necessary with regard to the scheduling of an examination. See Wood v. Derwinski, 1 Vet. App. 191 (1991) & Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (in which the Court held that VA's duty to assist is not a one-way street and that, if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). The Board will proceed to adjudicate the current increased rating issue based on the relevant evidence of record (including in particular pertinent and contemporaneous outpatient treatment records). 38 C.F.R. § 3.655(a) & (b) (2007). There is no suggestion in the current record that additional evidence, relevant to this matter, exists and can be procured. Consequently, the Board concludes that no further evidentiary development of the veteran's increased rating and earlier effective date claims is required. The Board will proceed to consider the veteran's claims for an initial rating greater than 20 percent for his service-connected diabetes mellitus and for an effective date earlier than January 16, 2001 for the grant of service connection for this disorder, based on the evidence of record. Analysis A. Initial Increased Rating For Service-Connected Diabetes Mellitus In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2007). Initially, by the January 2002 rating action, the RO granted service connection for diabetes mellitus, type II (20%, effective from January 16, 2001). This disorder remains evaluated as 20 percent disabling. . As the present appeal arises from an initial rating decision which, in essence, established service connection and assigned an initial disability rating, the entire period is considered for the possibility of staged ratings. In other words, consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2007). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2007). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation 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 (2007). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). According to the applicable rating criteria, evidence that diabetes mellitus requires insulin and a restricted diet or an oral hypoglycemic agent and restricted diet warrants the grant of a 20 percent rating. The next higher evaluation of 40 percent necessitates evidence of insulin, a restricted diet, and regulation of activities. A 60 percent rating requires evidence of insulin, a 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 be not compensable if separately evaluated. The highest evaluation allowable, 100 percent, necessitates evidence of the need for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). In the present case, the veteran contends that the symptomatology associated with his service-connected diabetes mellitus is more severe than that which is reflected by the currently assigned 20 percent rating for this disorder. He has not provided more specific argument. The veteran's assertions regarding his service-connected diabetic pathology involve matters capable of lay observation, and are deemed to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Such descriptions must, however, be considered in conjunction with the clinical evidence of record and the pertinent rating criteria. Throughout the current appeal, the veterans has received periodic (e.g., several times annually) outpatient treatment for his diabetes. According to the relevant medical reports, although the veteran is taking medication for, and has a restricted diet as a result of, his service-connected diabetes, at no time since January 16, 2001 has he been instructed to limit his activities due to his service-connected diabetes mellitus. In fact, he has been counseled on numerous occasions on the benefits of, and necessity for, exercising. Clearly, therefore, the next higher rating of 40 percent for the veteran's service-connected diabetes mellitus is not warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007) (which requires, in addition to the need for insulin and a restricted diet, evidence of the regulation of activities). Moreover, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for any time during the current appeal. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. Importantly, at no time during the current appeal has the veteran's service-connected diabetes mellitus required hospitalization or resulted in marked interference with employment. The Social Security Administration (SSA) determined that he was unemployable due to a separate (low back) disability. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned therein. What the veteran has not shown in this case is that his service-connected diabetes mellitus has resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. Accordingly, the Board concludes that consideration of the provisions set forth at 38 C.F.R. § 3.321(b)(1) is not warranted for the veteran's service-connected diabetes mellitus for any time during the current appeal. B. Effective Date Earlier Than January 16, 2001 For The Grant Of Service Connection For Diabetes Mellitus The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). An exception to that rule applies if an application for benefits is received within one year from the date of the veteran's discharge or release from active service, and an award is made on the basis of that application. In that situation, the effective date of the award is made retroactive to "the day following the date of discharge or release." 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(2007). See also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). In the present case, the Board finds that the preponderance of the evidence is against the veteran's claim for an effective date prior to January 16, 2001 for the grant of service connection for diabetes mellitus, type II. The record shows that the veteran was discharged from active military service in December 1971 and that VA first received his claim for service connection for diabetes mellitus, type II on January 16, 2001, more than a year later. Therefore, under the governing law, outlined above, the effective date of his award can be no earlier than January 16, 2001, the date of receipt of his application for service-connected benefits. Accordingly, and because the evidence of record clearly shows that VA first received the veteran's claim for service connection for diabetes mellitus, type II, on January 16, 2001 (many years after discharge from service), there is no basis for the assignment of an earlier effective date. The veteran's earlier effective date claim must be denied. ORDER An initial rating greater than 20 percent for diabetes mellitus, type II, is denied. An effective date earlier than January 16, 2001 for the grant of service connection for diabetes mellitus, type II, is denied. REMAND In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. A VCAA notice letter furnished to the veteran in June 2003 in the present case includes a reference to the veteran's back and pericarditis claims, but does not, as is necessary with new and material evidence claims, describe the type of evidence necessary to substantiate the required element(s) of service connection that were found insufficient in the previous denial. (Additionally, the letter incorrectly states that the August 2002 decision was the prior final denial of the veteran's back and pericarditis claims.) A remand, therefore, is necessary to provide the veteran with proper VCAA notice with respect to the new and material issues on appeal. See Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007) (any VCAA notice error is presumed prejudicial and it is VA's burden to rebut this presumption). Further review of the claims folder indicates that, in January 1996, the veteran was awarded SSA disability benefits due to his back disorder. Significantly, however, the medical records used in support of the SSA's grant of disability benefits are not contained in the claims folder. On remand, therefore, the AMC should attempt to obtain any such medical records which may be available and to associate them with the veteran's claims folder. Accordingly, further appellate consideration will be deferred and this case is REMANDED for the following actions: 1. The AMC should issue a VCAA notification letter to the veteran with regard to the issues of whether new and material evidence has been received sufficient to reopen previously denied claims for service connection for a back disability and pericarditis. The letter should include a discussion of the bases of the prior final denials of service connection for these disabilities by the RO in August 1997 (finding no chronic back disability in service or showing that current chronic back disability is related to service) and by the Board in January 1974 (finding no pericarditis in service or cardiovascular disease manifested to a compensable degree within one year of service or showing that cardiovascular disease is otherwise related to service), in accordance with the requirements of Kent v. Nicholson, 20 Vet. App. 1 (2006). 2. The medical records used in support of the SSA's January 1996 grant of disability benefits to the veteran should be obtained and associated with his claims folder. If any such documents are not available, that fact should be noted in the claims folder. 3. Following the completion of the above, the AMC should re-adjudicate the issues remaining on appeal (whether new and material evidence has been received sufficient to reopen previously denied claims for service connection for a back disability and for pericarditis). If the decisions remain in any way adverse to the veteran, he and his representative should be provided with an SSOC. The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable laws and regulations considered pertinent to the issues remaining on appeal, as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. 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 or by the Court 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs