Citation Nr: 0812720 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-25 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for coronary artery disease, secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for hypertension. 3. Entitlement to an increased evaluation for diabetes mellitus type II, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The appellant served on active duty from June 1964 to October 1968. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Chicago, Illinois, VA Regional Office (RO). The issue of entitlement to service connection for hypertension is being remanded and 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. FINDINGS OF FACT 1. Coronary artery disease is attributable to service- connected diabetes mellitus type II. 2. There is no competent evidence that the appellant's diabetes mellitus requires regulation of activities. CONCLUSIONS OF LAW 1. Coronary artery disease is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (2007). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus type II have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in March 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that the claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case or supplemental statement of the case can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the statement of the case or the supplemental statement of the case. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case). If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). According to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), 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. 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 of 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, for example, 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. In this case, the claimant was provided pertinent information in the March 2004 VCAA notice letter as well as in the July 2005 statement of the case. Cumulatively, the appellant was informed of the necessity of providing on his own or by VA, 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 or that the applicable 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result); the claimant was informed that should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and examples of pertinent medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) relevant to establishing entitlement to increased compensation. I. Service Connection The appellant is service connected for diabetes mellitus type II. In essence, he asserts that his service-connected diabetes mellitus has caused coronary artery disease. Except as provided in 38 C.F.R. § 3.300(c), disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2007). When aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service-connected condition, such 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, 448 (1995). Thus, in this case, in order to warrant service connection for coronary artery disease, the evidence must show that the appellant's coronary artery disease is related to service- connected disease or injury. Of record is both positive and negative evidence that must be weighed. In a November 2006 opinion, the VA examiner noted that the cause of coronary artery disease was generally multifactorial, with diabetes being one of the well-known risk factors, as well smoking, family history, hypertension, and hyperlipidemia, all of which are relevant to this case. The examiner stated that while the appellant's thirty-year history of chest pains was likely attributable to myositis, it was impossible to clearly determine which symptoms were due to myositis and which were due to coronary artery disease. The Board notes that a March 2005 rating decision reflects that the appellant is service connected for polymyositis. In addition, the November 2006 examiner noted that the appellant's more recent symptoms, to include an increased severity in chest pains, was probably caused by his diabetes mellitus, as well as some of his other multiple risk factors, and both the July 2004 VA examiner and the December 2006 VA examiner opined that the appellant's coronary artery disease was aggravated by diabetes mellitus type II. To the extent that the December 2006 examiner noted that the degree of aggravation could not be determined without resort to mere speculation, the appellant's claim was filed in January 2004. At that time, the criteria of 38 C.F.R. § 3.310 did not require a determination as to a baseline level of severity of a nonservice-connected disease or injury before service connection under a theory of aggravation was warranted. Clearly, the new regulation is restrictive and the Board shall not give impermissibly retroactive effect to the new regulation in this case. 38 C.F.R. § See 38 C.F.R. § 3.310 (effective October 10, 1006). To the extent that the AOJ has determined that the appellant is asymptomatic, as reflected in the July 2005 statement of the case, the Board notes that the competent medical opinions reflect diagnoses of coronary artery disease. In this case, the degree of impairment is a matter to be addressed coincident with the AOJ's implementation of the grant of service connection herein. Having reviewed the record in this case, the Board finds that there is an approximate balance of positive and negative evidence. Resolving doubt in favor of the appellant, the Board finds that there is a basis upon which to conclude that coronary artery disease is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. Based on the foregoing, the Board finds that the evidence supports a grant of service connection for coronary artery disease. Consequently, the benefits sought on appeal are granted. II. Evaluation Service connection for diabetes mellitus type II was established in a May 2002 rating decision and a 20 percent evaluation was assigned. In his January 2004 claim for an increased rating, he asserted that his diabetes was worse. Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2. Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, No. 05-2424 (U.S. Court of Appeals for Veterans Claims, Nov. 19, 2007). Under Diagnostic Code 7913, diabetes mellitus 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 warrants a 100 disability evaluation. 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 disability evaluation. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent disability evaluation. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent disability evaluation. Diabetes mellitus manageable by restricted diet warrants a 10 percent disability evaluation. Note 1 states to 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 states that when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 CFR § 4.119, Diagnostic Code 7913 (2007). The evaluation of the level of disability is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, in order to warrant a higher rating for diabetes mellitus type II, the evidence must show that in addition to requiring insulin and a restricted diet, regulation of activities is required. Essentially, and as noted in his July 2005 VA Form 9, the appellant asserts that he is unable to do strenuous exercise due to diabetes mellitus type II. The appellant is competent to report his symptoms. He is not, however, a medical professional and his opinion is not competent in regard to the issue of the objective degree of impairment due to diabetes mellitus type II, an issue for which medical expertise is required. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992) (lay persons are not competent to offer evidence that requires medical knowledge). The most probative evidence establishes that a higher rating is not warranted for diabetes mellitus type II. Records, dated in April 2003, reflect that the appellant walked daily for exercise without difficulty, and exercise was encouraged. While a December 2003 record reflects complaints of an increase in generalized pain with activity/exercise, a February 2004 record notes that the appellant was advised to increase exercise as much as possible, and good exercise tolerance was noted. The July 2004 VA examination report notes that the appellant specifically denied restriction of activities in order to maintain glycemic control. His primary limitations of activity were noted to be due to myositis and myalgias, not diabetes mellitus type II. Such evidence is far more probative than the appellant's unsupported lay opinion. The competent evidence establishes that the appellant's diabetes mellitus type II does not require regulation of activity. The preponderance of the evidence is against the claim of entitlement to an increased rating for diabetes mellitus type II and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. Lastly, the Board notes that there is no evidence of record that the appellant's diabetes mellitus type II caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards is rendered impracticable. The percentage ratings assigned by the VA Schedule for Rating Disabilities represent the average impairment in earning capacity resulting from a service- connected disability. 38 C.F.R. § 4.1. In this case, there is no evidentiary basis in the record for a higher rating on an extraschedular basis as there is no evidence that the appellant is unable to secure or follow a substantially gainful occupation solely as a result of his diabetes mellitus. Thus, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extraschedular evaluation. ORDER Service connection for coronary artery disease is granted. An evaluation in excess of 20 percent for diabetes mellitus type II is denied. REMAND The appellant is seeking service connection for hypertension, to include as secondary to service-connected diabetes mellitus. The Board notes that service connection for coronary artery disease secondary to service-connected diabetes mellitus has herein been granted. A July 2004 VA examination report notes that mild left ventricular hypertrophy was likely a complication of the appellant's essential hypertension. The Board finds that further development is warranted in regard to the issue of entitlement to service connection for hypertension. In addition, the Board notes that the March 2004 VCAA notice letter references coronary artery bypass, and references presumptive service connection in regard to cardiovascular disease associated with certain service-connected amputations of both lower extremities. The Board notes that while the August 2004 rating decision on appeal reflects that the AOJ denied service connection for hypertension secondary to service-connected diabetes mellitus type II, the decision also references direct service connection. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the appellant for a VA examination. The claims file should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be accomplished. The AOJ should request that the examiner provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the appellant's hypertension is related to service or is proximately due to or been chronically worsened by a service-connected disease or injury, to include coronary artery disease. If it cannot be determined whether the veteran currently has hypertension that is related to service or is proximately due to or been chronically worsened by a service- connected disease or injury, to include coronary artery disease, on a medical scientific basis and without invoking processes related to guesses or based upon mere conjecture, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. A complete rationale should accompany all opinions provided. 2. The record should be reviewed and VA should ensure compliance with all notice and assistance requirements set forth in the VCAA and subsequent interpretive authority. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004); VAOPGCPREC 7-2004 (July 16, 2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). A notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) 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 that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice should include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 3. In light of the above, the claim should be readjudicated. If the benefits sought on appeal remain denied, a supplemental statement of the case should be issued and the appellant afforded a reasonable period of time in which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs