Citation Nr: 0814772 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-14 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date prior to March 10, 2003 for the award of service connection for type II diabetes mellitus with background diabetic retinopathy. 2. Entitlement to an increased initial rating for service- connected type II diabetes mellitus with background diabetic retinopathy, rated as 10 percent disabling from March 10, 2003 to April 21, 2004 and as 20 percent disabling as of April 22, 2004. ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from February 1969 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for type II diabetes mellitus with a 20 percent evaluation effective April 22, 2004. In a March 2006 rating decision, the RO found that a September 2003 rating decision that had denied service connection for type II diabetes mellitus was clearly and unmistakably erroneous. A 10 percent evaluation was assigned effective March 10, 2003 and the 20 percent evaluation was continued from April 22, 2004. The RO also recharacterized the veteran's disability as type II diabetes mellitus with background diabetic retinopathy. In his April 2006 VA Form 9, the veteran requested a hearing before a member of the Board at the local VA office. A May 2007 letter informed him that he was scheduled to appear before the Board on May 16, 2007. A VA Form 119 May 15, 2007 reveals that the veteran was unable to make the hearing and would write in to reschedule. Review of the claims folder does not reveal that the veteran has requested a rescheduled hearing. As such, appellate review may proceed. In an April 2007 VA Form 21-4138, the veteran indicated that he wanted to reopen a claim to establish service connection for hypertension, a stomach condition secondary to diabetic medication, renal failure, vitamin deficiency, cholesterol and triglycerides, erectile dysfunction and gout. The RO acknowledged receipt of these claims in a June 2007 letter, but review of the claims file does not reveal that the RO has addressed these issues any further. Therefore, they are REFERRED for appropriate action. FINDINGS OF FACT 1. The veteran filed a claim for nonservice-connected pension that was received by the RO in March 2003 and accepted as a claim for entitlement to compensation. 2. Service connection for type II diabetes mellitus was originally denied in a September 2003 rating decision. 3. In December 2004, the RO granted service connection for type II diabetes mellitus with a 20 percent evaluation effective April 22, 2004. 4. In March 2006, the RO established service connection for type II diabetes mellitus with background diabetic retinopathy; a 10 percent rating effective March 10, 2003 was assigned and the 20 percent evaluation was continued from April 22, 2004. 5. There is no medical evidence of record showing that prior to April 22, 2004, the veteran's type II diabetes mellitus with background diabetic retinopathy required insulin or oral hypoglycemic agent in conjunction with a restricted diet. 6. There is no medical evidence of record showing that as of April 22, 2004, the veteran's type II diabetes mellitus with background diabetic retinopathy required insulin, restricted diet and regulation of activities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 10, 2003 for the award of service connection for type II diabetes mellitus with background diabetic retinopathy have not been met. 38 U.S.C.A. §§ 5107, 5110 (West. 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). 2. The criteria for an initial evaluation greater than 10 percent for service-connected type II diabetes mellitus with background diabetic retinopathy have not been met prior to April 22, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). 3. The criteria for an initial evaluation greater than 20 percent for service-connected type II diabetes mellitus with background diabetic retinopathy have not been met as of April 22, 2004. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier effective date claim The veteran filed a VA Form 21-526 that was received by the RO on March 10, 2003. Though he clearly indicated that he was filing a claim for only pension, the RO adjudicated a claim for entitlement to service connection for type II diabetes mellitus. This claim was denied in a September 2003 rating decision. Service connection for type II diabetes mellitus was subsequently granted on a presumptive basis due to exposure to herbicides with a 20 percent evaluation effective April 22, 2004. See December 2004 rating decision; 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. § 3.309(e) (2007). The veteran filed a notice of disagreement (NOD) that was received by the RO in February 2005. He contended that he was entitled to an effective date of July 1970, the time of his exposure to herbicide agents, rather than the effective date of April 22, 2004 assigned by the RO. The veteran has also asserted that he was treated for diabetes in the 1990s. See e.g., May 2006 VA Form 21-4142; statement received June 2006. The RO subsequently found that the September 2003 denial of service connection for type II diabetes mellitus was clearly and unmistakably erroneous. It noted that the March 2003 VA Form 21-526 was accepted as a claim for compensation even though the veteran indicated that he was claiming nonservice- connected pension benefits. The RO further found that service connection should have been granted as of the date that claim was received, since there was medical evidence indicating that the veteran had been diagnosed with diabetes mellitus. A 10 percent evaluation was assigned effective March 10, 2003; the 20 percent evaluation was continued as of April 22, 2004. The RO also recharacterized the disability as type II diabetes mellitus with background diabetic retinopathy, noting that the condition was noncompensable based on the veteran's corrected visual acuity. See March 2006 rating decision; see also 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2007). Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2007). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2006). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). If compensation is awarded pursuant to a liberalizing law or VA issue, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. For claims reviewed more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. In order for a claimant to be eligible for a retroactive payment, however, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2007); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997). Effective May 8, 2001, diabetes mellitus was added to the list of diseases to which the presumption of service connection applies for veterans who were exposed to Agent Orange while in service. See Disease Associated with Exposure to Certain Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166 (May 8, 2001) (codified at 38 C.F.R. § 3.309(e) (2004)). As noted above, review of the claims folder reveals that the veteran filed a formal claim for nonservice-connected pension benefits that was received by the RO on March 10, 2003. This claim was accepted and adjudicated as a claim for compensation in addition to pension benefits. See VA Form 21-526; September 2003 rating decision. There is no correspondence prior to the RO's receipt of the formal claim that could be construed as an informal claim for service connection for diabetes mellitus. Review of the claims folder also reveals an October 2002 medical record, which reports an assessment of new onset diabetes mellitus. See record from Dr. B. As the date on which the RO received the veteran's claim that was treated as a claim for compensation (March 10, 2003) is later than the date on which entitlement arose (October 2002), the RO correctly assigned an effective date of March 10, 2003 for the grant of service connection for type II diabetes mellitus with background diabetic retinopathy. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). Moreover, as there is no evidence that the veteran was entitled to service connection for diabetes mellitus as of May 8, 2001 and continuously until the date of the veteran's claim, the veteran is not eligible for retroactive payment pursuant to 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2007). For these reasons, the veteran's claim for entitlement to an earlier effective date for type II diabetes mellitus with background diabetic retinopathy is not warranted and the claim must be denied. II. Increased rating claim Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2007). Separate rating codes identify various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. See generally 38 C.F.R. §§ 4.1, 4.2 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, as discussed above, staged ratings have been assigned by the RO for service-connected type II diabetes mellitus with background diabetic retinopathy. See March 2006 rating decision. Also as discussed above, service connection for type II diabetes mellitus was initially denied in September 2003. A 20 percent evaluation was subsequently granted on a presumptive basis effective April 22, 2004. See December 2004 rating decision. The RO later determined that service- connection for type II diabetes mellitus had been established effective March 10, 2003. A 10 percent evaluation was assigned as of that date, the 20 percent evaluation was continued as of April 22, 2004, and the disability was recharacterized as type II diabetes mellitus with background diabetic retinopathy. See March 2006 rating decision. Based on the foregoing, the Board will determine whether the veteran is entitled to an initial rating in excess of 10 percent prior to April 22, 2004, and an initial rating in excess of 20 percent as of April 22, 2004. The veteran contends that he is entitled to an increased rating for service-connected type II diabetes mellitus with background diabetic retinopathy due to severe fatigue and the fact that medication does not help the problem. See NOD received February 2005. He has also submitted a list of symptoms, to include thirst and fatigue, leg pains, periods of faintness, weight gain, kidney stones, and low blood sugar, spanning between July 1970 and June 2005, which he contends support his claim for an increased rating. See April 2006 VA Form 9. The rating criteria for type II diabetes mellitus are found under 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007). Ratings in excess of 10 percent require insulin and restricted diet; or oral hypoglycemic agents and restricted diet (20 percent). Ratings in excess of 20 percent all require insulin, restricted diet, and regulation of activities; ratings higher than 40 percent require other criteria in addition to these. The earliest medical record associated with the claims folder indicating that the veteran had diabetes mellitus is the October 2002 record from Dr. B., which contains an assessment of new onset diabetes mellitus. Dr. B. advised the veteran of treatment and noted that repeat labs of fasting blood sugar (FBS) would be needed in addition to a comprehensive metabolic panel (CMP). It was also noted that a lipid profile, urinalysis (U/A) and thyroid stimulating hormone (TSH) would come before starting the veteran on medication. It appears that the veteran was also advised to see a diet counselor. See October 2002 record from Dr. B. The remaining records associated with the claims folder pertinent to the veteran's claim for increased rating for type II diabetes mellitus with background diabetic retinopathy consist entirely of VA treatment records from the VA Medical Center (VAMC) in Tampa, Florida. The veteran was seen in the ambulatory care clinic at the Tampa VAMC on April 22, 2004, at which time he reported a history of diabetes that he had been treating with herbal medicines for the last couple of years. The veteran was assessed with diabetes mellitus, not well-controlled. The veteran formally established care at the Tampa VAMC's ambulatory care clinic in May 2004. At that time, it was noted that the veteran was placed on glyburide 2.5 milligrams to initiate treatment of diabetes mellitus during the April 2004 visit. The veteran was again assessed with poorly controlled diabetes mellitus. A diet low in concentrated sweets and starches was recommended and a nutrition consult and diabetic meter examination were ordered. Glyburide was increased to 5 milligrams twice a day (b.i.d.) and the veteran was educated on hypoglycemic symptoms and treatment. See May 2004 ambulatory care note. The veteran continued to receive VA treatment related to his type II diabetes mellitus, during which there was no indication that he was prescribed insulin or advised to regulate his activities. Rather, he received exercise education, was encouraged to exercise, and received education related to dietary issues. See e.g., May 2004 primary care nursing note; July 2004; pharmacy consult notes dated November 2004 and July 2005; August 2005 nutrition consult note; March 2006 nutrition education follow-up note. The record also includes a February 2006 VA compensation and pension (C&P) diabetes mellitus examination report. The veteran's claims folder was not available but treatment records located in the Tampa VA Computerized Patient Record System (CPRS) were reviewed. The veteran reported that he was diagnosed with diabetes in 2004, at the age of 56. He denied ketoacidosis and having been hospitalized for ketoacidosis or hypoglycemic reactions. The veteran did report hypoglycemic reactions of a mild nature in the past, but had not had any in the last several months. The examiner reported that the veteran was on a restricted diet, which calls for no concentrated sweets; despite this, he had gained approximately 20 pounds in the previous 18 months. There were no specific activities he has had to restrict on account of his diabetes, although he did notice his feet hurt him when he walks since he gained the extra weight. The veteran's current treatment consisted of 5 milligrams of glyburide, one in the morning and two in the evening, and rosiglitazone, eight milligrams per day. The veteran was not on insulin and was visiting his diabetes care provider approximately three to four times per year. The examiner reported that the veteran underwent an eye examination in August 2005, at which time the presence of some early background diabetic retinopathy in the right eye was noted. No specific treatment, however, was indicated at that time, though the veteran was given glasses for nearsightedness. The examiner also reported a 10 year history of hypertension, but no history of myocardial infarction, stroke or kidney failure. The veteran denied erectile dysfunction, numbness or burning of his feet, and bowel or bladder incontinence. He did report a history of kidney stones for several years. Physical examination revealed a slightly obese male, ambulatory and in no apparent distress. Diagnostic testing pertinent to the examination included a urinalysis, which was negative for glucose or protein, though blood was present secondary to the veteran's established diagnosis of kidney stones. Electrolytes were unremarkable, with normal BUN and creatinine, glucose was 65, and hemoglobin A1c was 5.6. In pertinent part, the impression made was adult onset diabetes mellitus, stable on medication, well-controlled; no evidence of nephropathy, neuropathy, erectile dysfunction, cerebrovascular or cardiovascular complications. The evidence of record does not support the claim for a rating in excess of 10 percent for type II diabetes mellitus with background diabetic retinopathy prior to April 22, 2004. The only medical evidence of record dated before April 22, 2004 is the October 2002 record from Dr. B., which indicates that the veteran was advised to see a diet counselor but clearly noted that the veteran had not yet been put on medication. As such, this record reveals that the veteran's diabetes mellitus was being managed by restricted diet only. In the absence of evidence that the veteran had been prescribed insulin or oral hypoglycemic agents in addition to a restricted diet, a rating in excess of 10 percent is not warranted prior to April 22, 2004. The evidence of record also does not support the claim for a rating in excess of 20 percent for type II diabetes mellitus with background diabetic retinopathy as of April 22, 2004, as there is no medical evidence showing that the veteran required insulin and regulation of activities in addition to a restricted diet. See VA treatment records; February 2006 VA C&P diabetes mellitus examination report. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). III. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). 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) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board acknowledges that the veteran was not provided with proper section 5103(a) notice prior to the issuance of the December 2004 rating decision that is the subject of this appeal. The veteran's disagreement with the initial rating assigned for type II diabetes mellitus stems from his February 2005 NOD, which is subject to section 7105 procedures. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (2004). The Board is bound to follow this precedent opinion. 38 U.S.C.A. § 7104(c) (West 2002). The veteran was given Section 5103(a) notice in a March 2006 statement of the case (SOC), which provided him with the pertinent rating criteria, to include the schedule for rating the eye, and, therefore, provided information regarding the evidence necessary to establish a claim for increased rating. The veteran had previously been informed of his and VA's respective duties in obtaining evidence and he was asked to send any evidence in his possession that pertained to the claim. See September 2004 letter. Accordingly, the duty to notify has been fulfilled. The veteran was also provided notice of the appropriate disability rating and effective date of any grant of service connection, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). See March 2006 letter. With respect to the claim for an earlier effective date for type II diabetes mellitus with background diabetic retinopathy, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the disability rating and effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). This duty, however, is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran's private and VA treatment records have been associated with the claims folder and he was afforded an appropriate VA examination. The Board acknowledges that there appear to be outstanding private records associated with treatment the veteran received for diabetes prior to his initial diagnosis. The veteran initially indicated that he would contact the medical providers and send pertinent records to VA. See April 2005 VA Form 21-4138. He subsequently submitted a May 2005 VA Form 21-4142, which he attempted to use as a master authorization form for an attached list of medical providers. In a May 2005 VA Form 21-4138, he indicated that he wanted VA to obtain the records; he later reported that he would not sign dozens of VA Forms 21-4142 as this would be a waste of time and effort when VA had better organizational resources. See statement received July 2005. In light of the determination made in the Wood case and the veteran's statements regarding private medical records, the Board finds that the duty to assist has also been met. The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. ORDER An effective date prior to March 10, 2003, for the award of service connection for type II diabetes mellitus is denied. An initial rating greater than 10 percent for service- connected type II diabetes mellitus is denied prior to April 22, 2004. An initial rating greater than 20 percent for service- connected type II diabetes mellitus is denied as of April 22, 2004. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs