Citation Nr: 0812283 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-15 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The veteran served on active duty from August 1970 to May 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which granted service connection for diabetes mellitus, type II and assigned an evaluation of 20 percent, effective January 24, 2004, and denied the veteran's claims seeking entitlement to service connection for hypothyroidism and a TDIU. The veteran perfected an appeal of the issues noted on the title page. FINDINGS OF FACT 1. The veteran's diabetes mellitus, type II, does not require the regulation of activities. 2. The veteran's only service-connected disability, diabetes mellitus, type II, is not of such severity as to render him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.10, 4.119, Diagnostic Code (DC) 7913 (2007). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 3.340, 3.341, 4.15, 4.16, 4.18 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The VA duty to notify was satisfied by February and July 2005 letters sent to the appellant that fully addressed all four notice elements, and by the April 2006 statement of the case which set forth the criteria for a higher rating, found to be sufficient under Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that any defect concerning the timing of the notice requirement was harmless error. Significantly, VA notice was provided to the veteran prior to the first adjudication of the claim. Thereafter, an additional letter was sent to the veteran, and he has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA treatment records have been obtained. The veteran was also provided with three VA examinations (the reports of which have been associated with the claims file). Additionally, the veteran was offered the opportunity to testify at a hearing before the Board, but he declined. Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. Analysis The veteran contends that his diabetes mellitus, type II, warrants an initial disability rating in excess of 20 percent, and that the diabetes is of such severity that it prevents him from working, and therefore warrants a grant of TDIU. Diabetes Mellitus, Type II Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. 38 C.F.R. § 4.10. Since the present appeal arises from an initial rating decision, which established service connection and assigned the initial disability rating, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is 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). In a May 2005 rating decision, the RO granted service connection for diabetes mellitus, type II and assigned a 20 percent disability rating. The veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, DC 7913, which provides that a 20 percent rating is assigned for diabetes mellitus controlled by insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating 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 rated. Note 1 of Diagnostic Code 7913 provides that compensable complications of diabetes will be rated separately (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. 38 C.F.R. § 4.119, DC 7913 (2007). The veteran contends that his diabetes has limited his activities. In his May 2006 substantive appeal, the veteran noted that he must inject insulin three to four times per day, his diet is restricted, his weight has decreased, he must see a doctor every three months, and he has difficulty trimming his toenails and fingernails. In support of his claim, the veteran submitted a May 2006 letter in which his private physician, P. J. O'Neill, M.D., stated that the veteran "is on a restricted diet with limited activities." The regulation of activities is one indicia of a 40 percent disability rating. However, the Board finds Dr. O'Neill's statement regarding the veteran's regulation of activities conclusory, unsubstantiated, and contradicted by a more recent and more thorough examination. First, Dr. O'Neill gave no indication of what restrictions limit the veteran's activities. Second, although the veteran is competent to report any regulations on his activities, he has reported only one relevant regulation, namely difficulty trimming his toenails and fingernails, according to his May 2006 substantive appeal. This limitation alone is insufficient to warrant an increased rating. Injecting insulin and having a restricted diet are listed as the requirements for a twenty percent rating, and therefore cannot constitute a "regulation of activities" sufficient to increase the level of compensation to forty percent. Similarly, while having twice-a-month visits to a diabetic care provider is a requirement of a sixty percent rating, having once-every-three-month visits to a diabetic care provider does not qualify the veteran for additional compensation under the rating code. Finally, while the progressive loss of weight is one factor in a 100 percent disability, the veteran would have to show numerous other factors not present here in order to qualify for such a rating. Third, the VA examiner stated in his April 2007 examination that the veteran had no restrictions in his ability to perform strenuous activities, no additional symptoms of diabetic complication, and, most significantly, no effects from his diabetes on usual daily activities. A VA examiner in April 2005 similarly found that the veteran's diabetes was not causing any active limitations. The veteran's VA treatment records also show no evidence of any regulation of activities. Because the preponderance of the evidence shows that the veteran's activities are not restricted, the veteran does not qualify for a rating in excess of twenty percent for his diabetes mellitus, type II, at this time. Therefore, the veteran's claim is denied. In reaching this determination, the Board has considered whether, under Fenderson, a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119. But there is no evidence that the veteran's service-connected diabetes mellitus, type II has been persistently more severe than the extent of disability contemplated under the assigned rating at any time during the period of this initial evaluation. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total (100 percent), when the veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. If there is only one service- connected disability, it shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16(a) (2007). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. The veteran's only service-connected disability is diabetes mellitus, type II, which is rated at 20 percent disabling. His combined rating is therefore 20 percent disabling. The veteran fails to meet the schedular requirements for TDIU as the combined rating of his service-connected disability fail to combine to 70 percent, and no single disability is rated as 60 percent disabling. Nevertheless, for those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may also be assigned when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In the present appeal, the veteran has submitted some evidence suggesting a possible inability to work. First, the veteran has submitted a letter in which his private physician, Dr. Cosby, requested that the veteran receive a leave of absence from work from June 1988 through October 1988, because of the his uncontrolled diabetes. Similarly, the veteran has submitted a November 2004 letter in which the veteran's private physician, Dr. O'Neill, suggested that the veteran could benefit from a leave of absence from work due to his uncontrolled diabetes. Dr. O'Neill also drafted a December 2004 letter in which he explained that the veteran was out on medical leave through January 2005 due to his uncontrolled diabetes, hypothyroidism, and recovery from a trans ischemic attack. In a May 2006 letter, Dr. O'Neill wrote that the veteran retired early to gain control of his diabetes. The evidence submitted by the veteran is insufficient to warrant a finding of TDIU, and is contradicted by more specific medical evidence from a VA examination. The 1988 and 2004 physicians' letters requested only temporary medical leave, but did not mention any permanent inability to secure gainful employment. The May 2006 letter from Dr. O'Neill mentioning that the veteran had retired so as to control his diabetes, did not state that the retirement was medically necessary. By contrast, a VA examiner noted in an April 2005 examination that the veteran had "no medical problems which would preclude him from obtaining any meaningful work or continuing the work that he is doing currently." Finally, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. Although, the veteran is currently unemployed, Dr. O'Neill's May 2006 letter showed that the veteran quit his job voluntarily. Further, a VA examiner opined that the veteran's service-connected disability, diabetes mellitus, type II, does not prevent him from gainful employment. In addition, there is no competent evidence that the veteran's service-connected disability has resulted in frequent hospitalizations. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2005). See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As the preponderance of the evidence is against the veteran's claims, the "benefit-of-the-doubt" rule is not applicable, and the Board must deny his claims. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the veteran's claims are denied. ORDER An initial disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. A TDIU due to service-connected disability is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs