Citation Nr: 0814194 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-19 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 (West 2002) for damage to the left arm due to liquid nitrogen. 2. Whether reduction in the rating for diabetes mellitus with peripheral neuropathy from 40 to 20 percent was proper. 3. Entitlement to an increased evaluation for diabetes mellitus with peripheral neuropathy. 4. Entitlement to separate compensable ratings for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, [redacted] ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO). The December 2005 RO decision in pertinent part denied the claim of entitlement to compensation under 38 U.S.C.A. § 1151 for left arm damage due to liquid nitrogen and the March 2005 RO decision in pertinent part reduced the veteran's award of 40 percent to 20 percent disabling for diabetes mellitus with peripheral neuropathy. See also rating decisions dated in May 2007 and November 2007. FINDINGS OF FACT 1. The veteran received treatment for skin tags on his left arm at the Leavenworth VA hospital in September 2003. 2. The examiner used liquid nitrogen to remove the skin tags. 3. The veteran now has discoloration from the removal of these skin tags and experiences itching and burning. 4. The evidence at the time of the reduction in rating for diabetes mellitus with peripheral neuropathy showed that the veteran was taking insulin, had to regulate his diet and also had to regulate his activities. 5. When resolving all doubt in the veteran's favor there is evidence of insulin usage, restricted diet and regulated activities. 6. When resolving all doubt in the veteran's favor there is evidence of tingling, pain, numbness and decreased sensation in the veteran's feet due to his peripheral neuropathy to merit separate compensable ratings. CONCLUSIONS OF LAW 1. Compensation under 38 U.S.C.A. § 1151 for damage to the left arm due to liquid nitrogen is not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2007). 2. The criteria for restoration of the 40 percent rating for the veteran's diabetes mellitus with peripheral neuropathy are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.119, Diagnostic Code 7913 (2007). 3. The criteria for a rating in excess of 40 percent for diabetes mellitus with peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.119, Diagnostic Code 7913 (2007). 4. The criteria for separate 10 percent ratings for peripheral neuropathy of each lower extremity have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8521 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 38 U.S.C.A. § 1151 Compensation Damage to the Left Arm due to Liquid Nitrogen Pertinent Law and Regulations Applicable law provides that compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary and the proximate cause of the disability or death was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Loving v. Nicholson, 19 Vet. App. 96, 100 (2005). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and that such additional disability was directly caused by that VA activity. Id. at 101. In the Loving case, the veteran was undergoing a VA examination when a metal ceiling grate or panel fell on him. In that case, the Court held that the claimed knee injury resulting from the fallen grate was coincidental to the examination, and not caused by it, and concluded that the veteran's claim for compensation under 38 U.S.C.A. § 1151 "lies beyond the ambit of section 1151." Loving, 19 Vet. App. at 100-101. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 54 (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. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The veteran went for treatment at the Leavenworth VA hospital in September 2003. The records show that he went to the doctor because he was out of his medication and was also concerned about the skin on his nose and his arms. The records show that the examiner destroyed three separate pre- malignant skin lesions on the left dorsal forearm with liquid nitrogen therapy. The veteran tolerated the procedure well without complications. The veteran was also provided with wound care instructions such as avoiding the sun, keeping covered and wearing sunscreen. The medical records from the day of the procedure show that the veteran was alert and oriented. The veteran asserts that the nurse practitioner who removed his skin tags used the entire can of nitrogen to remove his tags and that the process burned his skin. In October 2003, the veteran presented at the Leavenworth VA hospital with the concern that the skin that was treated with liquid nitrogen was not healing well. The examiner noted that the wounds were healing well, with crusted lesions on a base of pink granulated tissue of the left forearm, with no drainage, edema or erythema. In August 2005, Dr. R.T. stated that the September 2003 procedure resulted in some discoloration of the skin, which can be seen in pictures taken 12 days after the procedure. The doctor points out that the veteran only complained about the lesions once in October 2003, when he stated that the area was not healing well. On follow-up appointments, the veteran voiced no concerns with his forearms. The doctor also notes that the veteran did not voice any concerns at a dermatology appointment in November 2004, nor did the dermatologist raise any concerns about the lesions. Dr. R.T. concluded that there was no evidence of inappropriate treatment or lack of care given to the veteran. In August 2007, the veteran complained of spots on his upper arms and severe itching. In November 2007, the veteran complained of itching and the examiner noted ill-defined erythematous papules on the arms. In a letter from Dr. J.L. dated in February 2008, he stated that the veteran has scarring on his upper left extremity. He stated that the "skin to the left forearm revealed an area of whitish discoloration and scarring from previous treatment for what appears to be some skin lesions in the form of possible actinic keratosis of eczema." In this case, the record shows that the veteran has scarring on his upper left extremity because of VA treatment he received for skin lesions. Thus, the crux of the matter rests upon the question of whether the proximate cause of the disability was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's death and VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). In this case, the veteran does not assert that the skin tags were not timely treated, but rather that liquid nitrogen was not administered properly. There is no evidence that the examiner did not properly treat the skin tags and medical testimony from Dr. R.T. concluded that there was no evidence of inappropriate treatment or lack of care given to the veteran. Additionally, the dermatologist who examined the veteran did not note any improper lesions on the veteran's body. There is also no evidence that the hospital did not have informed consent. The veteran had decision-making capacities and was able to communicate decisions regarding his healthcare. He also voiced concerns about the skin tags and had previous skin tags removed at the same facility. Furthermore, the Board finds that there is no competent medical evidence of record to support a conclusion that the veteran's scaring was an event not reasonably foreseeable in connection with VA liquid nitrogen treatment in September 2003. Any residuals, such as scars, are considered a normal part of the procedure. The Board has considered statements and testimony provided by the veteran. However, there is no showing that the veteran is qualified to provide an opinion concerning the cause of his scaring. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the appellant's claim for compensation under 38 U.S.C.A. § 1151 for damage of the left arm due to liquid nitrogen. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). II. Rating Reduction; Increased Evaluation & Separate Evaluation Diabetes Mellitus with Peripheral Neuropathy Law and Regulations The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The provisions of 38 C.F.R. § 3.105(e) allows for the reduction in evaluation of a service-connected disability when warranted by the evidence but only after following certain procedural guidelines. First, there must be a rating action proposing the reduction, and giving the veteran 60 days to submit additional evidence and request a predetermination hearing. If a hearing is not requested, and reduction is considered to be still warranted, a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e), (i)(2). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The RO sent the veteran a rating action proposing the reduction in October 2004. An RO letter was sent to the veteran in October 2004 explaining the process and offering the veteran a personal hearing. The veteran did not elect to have a hearing and in March 2005, the RO issued a rating decision that reduced the veteran's disability rating from 40 to 20 percent disabling. The reduction was placed into effect June 2005, complying with the requirement for a 60-day period from the date of notice. As the 40 percent evaluation for the veteran's diabetes mellitus with peripheral neuropathy had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a),(b), which provide additional regulatory hurtles to rating reductions, do not apply. The provisions of 38 C.F.R. § 3.344(C) provide that ratings in effect for less than five years can be reduced upon a showing that the disability has improved. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). It is noted that staged ratings are appropriate in increased rating claims in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis By way of history, the veteran was service connected for diabetes mellitus with peripheral neuropathy effective from November 15, 1996. In September 2001, the RO provided an increased rating to 40 percent disabling, effective from June 22, 2001. In an October 2004 rating decision, the RO found a clear and unmistakable error in the September 2001 rating decision stating that an increased rating was not warranted because the veteran was not taking insulin. A March 2005 decision decreased the veteran's rating to 20 percent disabling effective from June 2005. In order to be eligible for a 40 percent evaluation the veteran must show that he is taking insulin, has a restricted diet and is required to regulate his activities. After resolving doubt in the veteran's favor, a review of the veteran's records shows that he is currently taking insulin, has a restricted diet, and has to regulate his activities. Therefore, an evaluation of 40 percent disabling is warranted. September 2001 medical records show that the veteran was unable to control his diabetes even with small portions of food and exercising. In September 2003, the medical records show that the veteran was taking Glyburide for his diabetes. In July 2004, the examiner discussed the veteran's diet with him and proscribed Acarbose in order to bring the veteran's glucose levels down. He also stated that his next step was to put the veteran on insulin. March 2005 medical records show that the veteran was started on insulin. A medical record from June 2005 shows that the severity of the veteran's diabetes has restricted his activities, especially since going on insulin. In February 2006, the veteran was referred to Dr. J.K. Dr. J.K. reported that the veteran had type 2 diabetes with generally poor control. He stated that it was clear that the veteran would need multiple daily injections of insulin in order to optimize his diabetes control. In September 2007, the VA examiner noted that the veteran was taking insulin however, he was not asked to follow a specific diet. In November 2007, the medical records show that he was taking insulin regularly. A letter from Dr. J.L. dated February 2008, states that the veteran presented with a history of diabetes in poor control, shortness of breath, hypertension, a history of coronary artery disease, skin conditions and neuropathy with numbness to the hands and feet. The veteran is currently taking insulin for his diabetes. The doctor stated that the veteran should be under restricted activity. The doctor went on to say that due to these multiple medical conditions, the veteran is extremely restricted in his ability to work and exert himself due to his shortness of breath and complications of his health issues. According to the rating schedule, diabetes mellitus is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this diagnostic code, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for 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 evaluated separately. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Regarding the matter of reducing the assigned 40 percent rating to 20 percent effective June 2005, the Board finds that restoration to the previously assigned 40 percent rating is warranted. The medical records reflect that the veteran began taking insulin in March 2005 and by June 2005, he had to regulate his daily activities. The record also indicates that the veteran has been counseled regarding his diet. Therefore, the 40 percent rating for the disability, effective from June 1, 2005 is restored. 38 U.S.C.A. § 4.119, Diagnostic Code 7913. With regard to the veteran's increased rating claim, however, the medical evidence fails to show that a rating in excess of 40 percent disabling is warranted. The records do not reflect that he has 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 evaluated separately. Thus, he is not eligible for a rating of 60 percent disabling. The veteran also claims that he is entitled to a separate compensation for his peripheral neuropathy. The veteran was checked for peripheral neuropathy in August 2004. The veteran stated that he started having pain in his feet and lower legs. He compared the pain to a toothache, and rated it an 8 out of 10 in degree of pain. In January 2007, the examiner administered nerve conduction studies on the veteran and found the studies to be within normal limits. The examiner found there was no evidence to support the claim of peripheral neuropathy. In September 2007, however, the VA examiner noted that the veteran had peripheral neuropathy with symptoms of paresthesias, loss of sensation, tingling and pain in his feet. In November 2007, the veteran reported having aches in his legs and feet with numbness and tingling. The examiner noted a decreased sensation on monofilament on bilateral small toes and some difficulty localizing monofilament of the middle toes, bilaterally. The examiner stated that it was most likely secondary to early diabetes mellitus neuropathy. A letter from Dr. J.L. dated February 2008, states that the veteran's neuropathy needs to be addressed and most likely will be improved and limited if the veteran's diabetes can be improved. After a thorough review of the record, the Board has determined that Diagnostic Code 8521 favors the veteran's claim for peripheral neuropathy, as it applies to the external popliteal nerve, addressing paralysis of the foot. Under 38 C.F.R. § 4.124a, Diagnostic Code 8521, a 40 percent evaluation is assigned for complete paralysis as manifested by foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. A 30 percent evaluation is assigned for severe incomplete paralysis of the external popliteal nerve (common peroneal). A 20 percent evaluation is warranted for moderate incomplete paralysis and a 10 percent evaluation is warranted for mild incomplete paralysis. The veteran's medical records reflect pain, numbness and tingling in his feet. In addition, objective medical evidence shows that he has decreased sensation in his toes. The Board finds that these symptoms are most accurately reflected by a rating of mild under Diagnostic Code 8521. A rating of moderate is not merited as the EMG studies show the veteran's symptoms to be within normal limits. Therefore, a 10 percent evaluation for each foot will be awarded to the veteran pursuant to Diagnostic Code 8521. III. Duty to Notify and Duty to 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 and 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, if any, 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or 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 (2004). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board concludes that the veteran has been afforded appropriate notice under the VCAA for his claim for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for damage to the left arm due to liquid nitrogen and for an increased rating for his diabetes mellitus with peripheral neuropathy. The RO provided a VCAA notice letter to the veteran in December 2004 regarding his claim for damage to the left arm due to liquid nitrogen, prior to the initial adjudication of the claim. In a December 2004 letter, the veteran was advised of what was needed to substantiate a claim for compensation pursuant to 38 U.S.C.A. § 1151. The letter notified the veteran of what information and evidence must be submitted to substantiate the claim, as well as what information and evidence must be provided by the veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence that pertains to the claim to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to increased rating claims, the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) determined that VA must provide notice that includes: (1) notification that 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; (2) at least general notice of any specific measurement or testing requirements needed for an increased rating if the Diagnostic Code contains rating criteria that would not be satisfied by demonstrating only a general worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life; (3) notification that if an increase in disability is 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 0% to as much as 100% (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; and (4) notification 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-e.g., 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, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Board concludes that the veteran has been afforded appropriate notice under the VCAA. The RO provided a VCAA notice letter to the veteran in June 2005, notifying the veteran of what information must be submitted to substantiate a claim for an increased rating. While the letter was sent after the rating decision took place, the veteran was given the opportunity to submit additional evidence. The veteran responded that he had additional evidence to submit. The Court of Appeals for Veterans Claims (Court) in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Element (1) is not at issue. Regarding elements (2) and (3) (current existence of a disability and relationship of such disability to the veteran's service), the veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Regarding elements (4) and (5) (degree of disability and effective date), the veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities in May 2006. Notwithstanding this belated Dingess notice, the Board determines that the veteran was not prejudiced, as the preponderance of the evidence is against the veteran's claim of compensation pursuant to 38 U.S.C.A. § 1151. An increased rating in excess of 40 percent for diabetes mellitus is not warranted. Therefore, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Regarding the peripheral neuropathy increased rating claims, the RO will assign the increased ratings and effective dates. Thus, the veteran has not been prejudiced in this regard. The Board finds that no reasonable possibility exists that any further assistance would aid the veteran in substantiating the claim, and that VA has no further duty to notify him of the evidence needed to substantiate his claim. See 38 U.S.C.A. § 5103A. Of record are the veteran's VA and non-VA outpatient treatment reports and VA examinations. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issues on appeal is required to comply with the duties to notify and assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for damage to the left arm due to liquid nitrogen, is denied. Entitlement to restoration of a 40 percent rating for diabetes mellitus is warranted, subject to the regulations pertinent to the disbursement of monetary funds. Entitlement to an evaluation in excess of 40 percent for diabetes mellitus is denied. Entitlement to separate ratings of 10 percent for peripheral neuropathy of the right and left lower extremity are granted, subject to the regulations pertinent to the disbursement of monetary funds. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs