Citation Nr: 0814122 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 02-16 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from November 1960 to November 1963, from May 1966 to May 1969, and from February 1970 to March 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. When the case was last before the Board in June 2006, it was remanded for additional development. FINDING OF FACT Throughout the entire period of the claim, the veteran's diabetes mellitus has been treated with insulin and a restricted diet; it has not required regulation of his activities. CONCLUSION OF LAW The 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. §§ 4.7, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, following the award of service connection for diabetes and appeal of the evaluation assigned, the RO issued a letter in August 2005 to the veteran regarding what information and evidence is needed to substantiate a claim for an increase rating, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence he has in his possession that pertains to the claim. A June 2006 letter advised the veteran of the types of evidence to submit to substantiate his claim, such as statements from his doctor, statements from other individuals describing their observations, or his own statement describing the symptoms, frequency, severity and additional disablement caused by his disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In addition, the letter advised the veteran of the type of evidence needed to establish a disability rating, including evidence addressing the impact of his condition on employment and the severity and duration of his symptoms, and of the evidence the needed to establish an effective date. Id. The veteran was provided with the rating criteria to establish disability ratings for diabetes mellitus in the June 2002 statement of the case. The claim was last readjudicated in November 2007. In any event, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service treatment records and post-service medical records and examination reports. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The veteran argued in his September 2002 VA Form 9 that his diabetes mellitus warrants a 40 percent rating, and in a November 2003 statement the veteran stated the criteria (restricted diet, insulin dependence, and regulation of strenuous activities) for the 40 percent rating, thus showing actual knowledge of the rating criteria and what he needed to show for a higher rating. Additionally, the veteran described the impact of his condition on his daily activities to VA examiners. There is no additional notice that should be provided and there is no indication that there is other evidence to obtain. Moreover, as the Board concludes below that the preponderance of the evidence is against the claim, any question as to a disability rating or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes his contentions, service treatment records, VA medical records, private medical records, and VA examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in 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, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, service connection for diabetes mellitus was granted in an October 2001 rating decision. A 20 percent disabling rating was assigned pursuant to Diagnostic Code 7913, and the rating was made effective on March 19, 2001. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The next higher rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). 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 rating. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). A 100 percent evaluation is applicable for diabetes mellitus that requires more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 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. 38 C.F.R. § 4.119, Code 7913 (2001). The medical evidence throughout the period of the claim demonstrates that the veteran's diabetes is managed by diet and insulin. There is no restriction on the veteran's activities for control of his diabetes. Specifically, the May 2001 VA examination report notes that the veteran is on a restricted diet and insulin, and that his diabetes has not caused any ketoacidosis or hypoglycemic reactions. It was noted he was restricted due to his extreme obesity and fatigue. It was indicated that he saw a diabetic care provider every four months. The October 2002 VA examination report notes that the veteran's diabetes requires insulin, and that there has been no weight loss. At that time, his weight was listed as 360 pounds. A June 2005 general medical examination noted the veteran takes insulin twice a day. He weighed 383 pounds. It was noted that he is limited in terms of his ability to walk as he has burning in his feet most of the time. The December 2006 VA examination report notes that the veteran is on insulin and a restricted diet for his diabetes. His weight was listed as 401 pounds. It was noted that the veteran has never had any ketoacidosis. While the veteran did report hypoglycemic episodes wherein his sugar is in the high 60s or low 70s, he has never been hospitalized for such. The veteran stated that he has never had any restriction of his activities due to his diabetes. However, the veteran indicated that his diabetic neuropathy prevents him from walking more than a block and a half due to burning feet. It was noted that the veteran retired from General Electric in 1996 due to a knee injury that occurred at work. The report of the October 2007 VA examination notes that the veteran's diabetes mellitus is treated with diet and exercise as well as insulin. It was noted that he had been on a restricted diet and lost 15 pounds in the last month 6 months. He reportedly sees a diabetic care provider every 6 months. There are no episodes of ketoacidosis, and while he does report occasional hypoglycemic episodes, such has not required hospitalization. The examiner specifically opined that the veteran does not have any restriction on strenuous occupational or recreational activities in order to control his diabetes mellitus. It was mentioned, however, that the veteran is restricted in his activities due to his burning feet and peripheral neuropathy. Outpatient treatment records note treatment for diabetes, which was generally noted as being controlled. In sum, the preponderance of the medical evidence of record indicates that the veteran does not require restriction of his activities to control his diabetes mellitus. In fact, the medical evidence indicates that he has been instructed to exercise. Therefore, the Board concludes that the veteran's diabetes mellitus is appropriately rated as 20 percent disabling throughout the period of the claim. While the veteran's representative has argued that he is restricted due to his peripheral neuropathy, the veteran is in receipt of separate ratings for his feet, and symptoms related to that disability cannot be considered in assigning the evaluation for his diabetes. 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided). The Board has also considered whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the veteran has not required frequent hospitalization for this disability and the manifestations of this disability are adequately addressed by the schedular criteria. In addition, there is no indication in the record that his diabetes results in marked interference with employment. In this regard, the veteran is presently retired due to a work-related knee injury, and there is no more than moderate impairment in his functional activities as a result of his diabetes. Therefore, referral of this case for extra-schedular consideration is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Because the evidence in this case is not approximately balanced with regard to this issue, the benefit-of-the-doubt doctrine does not apply, and the claim for a higher initial rating for diabetes mellitus must be denied. 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs