Citation Nr: 0813842 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-27 881 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 until May 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2002 rating decision. FINDING OF FACT The veteran's activities have not been regulated to treat his diabetes mellitus; nor does he require insulin. CONCLUSION OF LAW Criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In his substantive appeal, the veteran asserted that his diabetes mellitus as a whole was underrated mainly because the secondary disabilities, such as neuropathy, that had been caused by his diabetes mellitus had not been rated. The regulations direct that all 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 to be part of the diabetic process. See 38 C.F.R. § 4.119, DC 7913. However, since the veteran's substantive appeal was received several rating decisions were issued (August 2005 and January 2006) that service connected and separately rated several disabilities (arteriosclerotic cardiovascular disease; erectile dysfunction; and peripheral neuropathy of all four extremities) as having been caused by the veteran's diabetes mellitus. The veteran did not file any disagreement with these rating decisions; and no other health conditions have been alleged to have been directly caused by the veteran's diabetes mellitus. As such, no secondary conditions will be discussed in this decision. Instead, only the rating directly attributable to the treatment of the veteran's diabetes mellitus will be discussed below. The veteran is currently rated at 20 percent for his diabetes mellitus under 38 C.F.R. § 4.119, DC 7913. A 20 percent rating is assigned when treatment of diabetes mellitus requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when treatment of diabetes mellitus requires insulin, a restricted diet, and regulation of activities. Here, the evidence of record, consisting of VA and private treatment records and several VA examinations, fails to show that treatment of the veteran's diabetes mellitus meets the criteria necessary for a rating in excess of 20 percent. While the veteran is currently prescribed an oral hypoglycemic agent, Metformin, the evidence fails to show that he takes insulin to treat his diabetes. For example, at a VA examination in January 2007 it was noted that the veteran was not using insulin to treat his moderately well- controlled diabetes mellitus. Treatment records similarly fail to document the use of insulin. There is also no indication that the veteran's activities have been regulated to treat his diabetes mellitus. VA and private treatment records are silent as to any regulation of activities; and, at his VA examination in January 2007, the veteran indicated that he remained active, and walked on a daily basis, although he stated that he generally began to have some pain in his legs after a few hundred yards that required him to stop and rest. The examiner found that the veteran's diabetes mellitus did not prevent the veteran's employment and it did not cause a restriction of his activities. It is less clear whether a restricted diet is required. At a VA examination in April 2003, the veteran indicated that he did not follow a specific diet, but he stated that he did use Splenda for his sweetener and he tried to avoid sweets. In a treatment record from June 2003 the veteran denied being on any special diet, but he stated that he tried to avoid foods with simple sugars; diet management was discussed and the veteran agreed to make some changes. In December 2003, the veteran met with a dietician and discussed means of achieving weight loss. In June 2006, the veteran was encouraged to maintain a diabetic diet. At his VA examination in January 2007, the veteran indicated that he watched the carbohydrates in his diet, but otherwise was not on a restricted diet. As such, there are indications both that a restricted diet has been suggested, and that it has not been prescribed. However, regardless of whether a restricted diet is required, the veteran fails to satisfy the other criteria for a rating in excess of 20 percent for diabetes mellitus in that neither insulin is required nor are the veteran's activities restricted. As such, the veteran's claim is denied. II. Duties to Notify and Assist 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). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was completed by a letter dated in September 2005, which informed the veteran of all four elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the veteran was not given prior to the first adjudication of the claim, the veteran 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). Additionally, the veteran's claim was readjudicated following completion of the notice requirements. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006). VA and private treatment records have been obtained. The veteran was also provided with several 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. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the veteran's claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the veteran under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. ORDER A rating in excess of 20 percent for diabetes mellitus is denied. ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs