Citation Nr: 0812371 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-17 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus, type II. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The veteran served on active duty from March 1969 to March 1971. The veteran also had service in the South Carolina Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO granted service connection for diabetes mellitus and granted an initial 20 percent evaluation. The effective date of this grant was July 9, 2001, the date the law was changed to recognize diabetes mellitus type II as associated with Agent Orange exposure. The RO also denied entitlement to service connection for hypertension. The Board remanded the case for additional development in June 2007. In October 2004, the veteran withdrew his request for a Decision Review Officer hearing. He has not made any subsequent requests for another hearing. As the veteran has perfected an appeal as to the initial evaluation assigned for diabetes, the Board has characterized this issue in accordance with the decision in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (appeals from original awards are not to be construed as claims for increased ratings), which requires consideration of the evidence since the effective date of the grant of service connection. As Fenderson requires that the claim not be construed as a claim for increased rating, the requirements of Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) are not applicable to the present claim. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. Diabetes mellitus is manifested by daily use of insulin and a restricted diet, without probative evidence of the need for regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, or a progressive loss of weight and strength because of the disorder. 3. The evidence of record demonstrates the veteran's hypertension is aggravated by his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2007). 2. Hypertension was aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the veteran in correspondence from the RO dated in July 2002 and July 2007. Those letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claims, identified the veteran's duties in obtaining information and evidence to substantiate his claims, and requested that the veteran send in any evidence in his possession that would support his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). Although the veteran has not been provided with the VCAA requirements of the duty to assist and duty to notify as it pertains to the issue of increased rating, this claim is a downstream issue from the grant of service connection. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues, and that a Court decision suggesting otherwise was not binding precedent. VAOPGCPREC 8-2003, 69 Fed.Reg. 25180 (May 5, 2004); cf. Huston v. Principi, 17 Vet. App. 370 (2002). The Board is bound by the General Counsel's opinion. 38 U.S.C.A. § 7104 (West 2002). VAOPGCPREC 8-2003; 69 Fed.Reg. 25180 (May 5, 2004). While this logic is called into some question in a recent Court case, neither this case nor the GC opinion has been struck down. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, as discussed below information in the folder provides sufficient information to allow decision to be entered on the matters decided herein. The veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in July 2007. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155(West 2002); 38 C.F.R. § 4.1 (2007). The Court has held that a claim for a higher rating when placed in appellate status by disagreement with the original or initial rating award (service connection having been allowed, but not yet ultimately resolved), remains an "original claim" and is not a new claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In such cases, separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged" ratings. Id. at 126. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service- connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2007). When there is a question as to which of two evaluations to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7 (2007). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2007). 7913 Diabetes mellitus Ratin g Requiring 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 100 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 60 Requiring insulin, restricted diet, and regulation of activities 40 Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 Manageable by restricted diet only 10 Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). Service records show that the veteran served in Vietnam from August 1969 to January 1970 . Service treatment records are silent for any signs, symptoms, or treatment for diabetes. A private hospital record from October 1988 reveals that the veteran had a diagnosis of insulin dependent diabetes mellitus. Private medical records from October 1988 through July 2002 reveal ongoing treatment for diabetes. On VA diabetes mellitus examination in July 2002, the veteran denied experiencing hypoglycemic symptoms. He said that he had not worked since 1999; his private doctor recommended him for disability due to burning pain in his lower extremities. The examiner noted that the veteran's skin was warm and dry without significant diabetic sores or ulcers. A diagnosis of insulin requiring type II diabetes mellitus was given. During a July 2002 VA psychiatric examination, the veteran related that in 2000, he was involved in a motor vehicle accident, sustaining a C-3 spinal injury requiring him to ambulate with crutches. Because of the injury, he could not shoot pool, dance, play ball or fish and he attended physical therapy five times a week. The veteran's spouse stated in October 2004 that the veteran's activities were restricted because he was unable to keep his sugar at a normal level. The veteran reported to a VA examiner in September 2007 that he was first diagnosed with diabetes mellitus in the late 1970s. He said that at the time of his diagnosis he had ketoacidosis, but since that time, he had no further diagnoses of ketoacidosis. He had no other admissions to the hospital specifically for ketoacidosis. He also reported no hospitalizations for hypoglycemia. He followed a restricted diet. While the veteran expressed that his diabetes affected his activities of daily living, it was noted that he had not been advised to restrict his activity to prevent his blood sugar from dropping too low. The examiner opined that the veteran had diabetes mellitus type 2, requiring dietary restriction and insulin for control. Based on the evidence of record, the Board finds that at all times throughout the period of appeal, the veteran's diabetes mellitus has been manifest by daily use of insulin and a restricted diet, without probative evidence of the need for regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, or a progressive loss of weight and strength because of the disorder. In this matter the Board finds the VA examinations of July 2002 and September 2007 persuasive. Both examiners thoroughly reviewed the claims file and performed all necessary tests. Both examiners stated that the veteran's diabetes was treated through insulin injections and a controlled diet. The September 2007 VA examiner specifically noted that none of the medical evidence of record advised the veteran to restrict his activity to prevent his blood sugar from dropping too low. Without competent medical evidence of a regulation of the veteran's activities due solely to the service-connected diabetes, a rating in excess of 20 percent cannot be granted. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). The Board has carefully considered the October 2004 statement by the veteran's spouse that the veteran's activities were restricted due to his inability to keep his sugar at a normal level. However, the veteran's spouse as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding causation and diagnosis are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). While the veteran's spouse is competent to report what comes to her through his senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, she cannot provide a competent opinion regarding diagnosis and causation. Further, during his July 2002 VA psychiatric examination, the veteran related that spinal cord injury as a result of a 1999 motor vehicle accident affected his ability to participate in many activities. The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disorder, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. The Board notes the January 1999 letter from J.M.M., M.D., which states that the veteran is no longer employable. However, Dr. M. indicated that the veteran was unemployable as a result of his severe neuropathy. The brief letter provided no explanation for the physician's opinion. The Board observes that the veteran was also received severe injuries from an automobile accident in December 1999. While the service-connected diabetes may interfere with the veteran's employment opportunities, the Board finds the interference with employment solely because his service-connected diabetes mellitus is not shown to be marked. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including hypertension, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has also held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A 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(a) (effective before and after October 10, 2006). The Court has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective after October 10, 2006); see 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). In this case, the service treatment records are negative for a diagnosis of hypertension. Private medical correspondence from J.M.M., M.D., dated August 1993 states that the veteran had hypertension that was under excellent control with Capoten. The veteran's spouse stated in October 2004 that the veteran was treated for hypertension when he was first diagnosed with diabetes. She also indicated that the veteran took Capoten for years. On VA examination in September 2007, the veteran reported that he was diagnosed with hypertension in the 1970s. He said that he smoked approximately one pack of cigarettes per week for approximately 10 years. The examiner opined that the veteran had hypertension which was not secondary to his diabetes mellitus as they were diagnosed at or about the same time. The examiner also opined that the hypertension was at least as likely as not aggravated by his diabetes mellitus. Based on the evidence of record, the Board finds that the veteran's hypertension is aggravated by his service-connected diabetes. In this matter, the Board finds the September 2007 VA examination persuasive. The examiner reviewed the claims file and opined that while the veteran's service-connected diabetes did not cause the veteran's hypertension, it was as least as likely as not that it aggravated his hypertension. As the Court has held that when aggravation of a nonservice- connected condition is proximately due to or the result of a service-connected condition the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation, service connection for hypertension as aggravated by diabetes mellitus is warranted. See Allen v. Brown, 7 Vet. App. 439 (1995). ORDER Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus, type II is denied. Entitlement to service connection for hypertension is granted. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs