Citation Nr: 0812757 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-24 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial increased disability rating for diabetes mellitus type II, currently evaluated as 20 percent disabling. ATTORNEY FOR THE BOARD Amy M. Smith, Associate Counsel INTRODUCTION The veteran served on active military duty from December 1957 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating action of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee. The Board notes that in a November 2005 letter to the veteran, the RO indicated that it was working on reconsideration of a previous denial for service connection for a right knee condition. This issue has not been adjudicated. Accordingly, it is referred to the RO for appropriate consideration. FINDING OF FACT The medical evidence shows that the veteran requires insulin, restricted diet, and regulation of activities for control of his service-connected diabetes mellitus type II. CONCLUSION OF LAW The criteria for an initial disability rating of 40 percent, and no higher, for diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic code 7913 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). Where, as here, when the claim was one for service connection, and it was then granted and an initial disability rating and effective date have been assigned, the veteran's service connection claim has been more than substantiated - it has been proven. Section 5103(a) notice has served its purpose and is no longer required. As section 5103(a) no longer applies to the veteran's appeal (e.g., his initial 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, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). Instead, the provisions of 38 U.S.C.A. §§ 5104, 7105 and 38 C.F.R. § 3.103 are for application. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The requirements of 38 U.S.C.A. §§ 5104, 7105 and 38 C.F.R. § 3.103 were satisfied by a May 2005 letter (which notified the veteran of the grant of service connection for diabetes mellitus type II, the assignment of a 20 percent rating effective January 2004, and his appellate rights) and the May 2006 statement of the case (which set forth the criteria necessary for a disability evaluation greater than 20 percent, citations to applicable law, and the reasons and bases for the grant of a 20 percent rating). Thus, the Board finds that the applicable due process requirements have been met. Additionally, the Board finds that the duty to assist provisions of the VCAA have been met in this case. All relevant treatment records adequately identified by the veteran have been obtained and associated with the claims folder. In fact, in a December 2005 statement, the veteran noted he had no additional information or evidence to submit. Accordingly, the Board concludes that VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinsk, 1 Vet. App. 540, 546 (1991). Standard Of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Historically, the veteran filed a claim for entitlement to service connection for diabetes in December 2004 (which was received by the RO in January 2005). The RO granted service connection for diabetes mellitus type II in an April 2005 rating decision and assigned a 20 percent disability rating, effective from January 2004. (An effective date one year prior to the day the claim was received was granted due to change in the law). This service-connected disability remains evaluated as 20 percent disabling. As the present appeal arises from an initial rating decision which 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 assigned to reflect levels of current disability. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Diabetes 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 is rated as 100 percent disabling. Diabetes 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 is rated as 60 percent disabling. Diabetes requiring insulin, restricted diet, and regulation of activities is rated as 40 percent disabling; while diabetes requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is rated as 20 percent disabling. Compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913. The veteran essentially contends that his service-connected diabetes is more severe than the current 20 percent evaluation indicates. In a December 2005 statement, he reported that his diabetes medication had changed from pill form to insulin. Additionally, in the substantive appeal, which was received by the RO in July 2006, he indicated that his physician had recommended regulation of activities. The veteran's lay descriptions are deemed to be competent evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, the lay descriptions of this service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. Review of the record reflects that the initially-assigned 20 percent rating was granted on the basis of evidence showing that the veteran required oral medication and restricted diet for the control of his diabetes. VA treatment records show that insulin was added to this treatment regimen in July 2005. Subsequently, at a July 2006 VA annual examination, the treating nurse practitioner specifically recommended that due to his diabetes mellitus, he "avoid strenuous sports/activity/exertion such as cutting the yard." In light of the foregoing medical evidence, the Board finds that a disability rating of 40 percent is warranted for the veteran's service-connected diabetes mellitus. The Board has considered whether a rating greater than 40 percent is warranted and finds that it is not. While the veteran requires insulin, restricted diet, and regulation of activities, the record does not reflect episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. As such, the preponderance of the evidence is against the assignment of a disability rating greater than 40 percent. 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. 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 scheduler 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 schedule standards. Id. In the instant case, the record is absent of any evidence of lost time from work or lost productivity due to the veteran's service-connected diabetes. The veteran has not shown that his service-connected diabetes 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 in 38 C.F.R. § 3.321(b)(1) is not warranted for the veteran's service-connected diabetes mellitus. ORDER A 40 percent rating for diabetes mellitus, type II is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs