Citation Nr: 0814863 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-11 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to an increased evaluation for diabetes mellitus, type II, with hypertension, currently evaluated as 20 percent disabling. 4. Entitlement to an increased evaluation for right ankle sprain, currently evaluated as 10 percent disabling. 5. Entitlement to a compensable evaluation for ingrown toenails of bilateral great toes with postoperative on left. 6. Entitlement to an increased evaluation for dermatitis, groin, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Associate Counsel INTRODUCTION The veteran had active duty service from October 1971 to October 1975. The issue of service connection for cervical spine disability comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2003, a statement of the case was issued in July 2003, and a substantive appeal was received in August 2003. Further, the issues of increased ratings for right ankle sprain and bilateral ingrown toenails come before the Board on appeal from a January 2002 rating decision by the RO. A notice of disagreement was received in March 2002, a statement of the case was issued in August 2002, and a substantive appeal was received in August 2002. By rating decision in August 2006, the RO increased the right ankle disability rating to 10 percent, effective February 6, 2006. However, where there is no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, the RO and Board are required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet.App. 35, 39 (1993). The issue therefore remains in appellate status. Lastly, the issue of increased ratings for dermatitis of the groin and diabetes mellitus, type II, with hypertension come before the Board on appeal from an October 2004 rating decision by the RO. A notice of disagreement was received in November 2004, a statement of the case was issued in August 2005, and a substantive appeal was received in August 2005. Again, by rating decision in August 2005, the RO increased the disability rating for dermatitis of the groin to 10 percent, effective August 4, 2003, the date of receipt of the claim. However, as there has been no clearly expressed intent to limit the appeal to entitlement to a specified disability rating, this issue also remains in appellate status. A personal RO hearing was held in February 2003 with respect to the issues of service connection for cervical spine disability and increased ratings for bilateral ingrown toenails and right ankle sprain. In his August 2005 substantive appeal, the veteran requested a Board hearing; however, in a subsequent September 2005 statement, the veteran changed his request to a local RO hearing. Another personal RO hearing was held in January 2006 with respect to all the issues on appeal. The issues of increased ratings for gastroesophageal reflux disorder with hiatal hernia and sinusitis with allergic rhinitis were also on appeal. However, in a January 2006 statement, the veteran withdrew his appeal with respect to these issues. Thus, there remains no allegation of error of fact or of law for appellate consideration with respect to these issues. See 38 C.F.R. § 20.204. Further, the January 2002 rating decision also denied entitlement to service connection for hemorrhoids, and the veteran's notice of disagreement and substantive appeal indicated that he wished to also appeal this issue. However, a subsequent rating decision in October 2003 granted service connection for hemorrhoids. Thus, as this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status. The issues of increased ratings for the veteran's right ankle sprain, bilateral ingrown toenails and dermatitis of the groin are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for cervical spine disability was denied by an April 1977 rating decision; a notice of disagreement was not received to initiate an appeal from that determination. 2. Evidence that raises a reasonable possibility of substantiating the claim for service connection for cervical spine disability has been received since the April 1977 rating decision. 3. Cervical spine disability was not manifested during the veteran's active duty service or for many years thereafter, nor is any current cervical spine disability otherwise related to such service or to any injury during service. 4. The veteran's service connected diabetes mellitus, type II, with hypertension, requires insulin and restricted diet, but not regulation of activities. CONCLUSIONS OF LAW 1. The April 1977 rating decision, which denied entitlement to service connection for cervical spine disability, is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. New and material evidence has been received since the April 1977 rating decision denying service connection for cervical spine disability; and thus, the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 3. Cervical spine disability was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to be incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. The criteria for entitlement to a disability evaluation in excess of 20 percent for diabetes mellitus, type II, with hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The record shows that in a June 2002 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to service connection for cervical spine disability. Further, August 2004, February 2005 and November 2005 VCAA letters informed the appellant of the information and evidence necessary to warrant entitlement to an increased rating for diabetes mellitus, type II, with hypertension. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The Board also notes that the June 2002 VCAA letter implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was repeatedly advised to identify any source of evidence and that VA would assist in requesting such evidence. He was advised, at page 2, to submit information describing the additional evidence or the evidence itself. The Board believes that a reasonable inference from such communication was that the appellant must also furnish any pertinent evidence that the appellant may have. Further, with respect to the issue of diabetes mellitus, the Board also notes that the August 2004 VCAA letter notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised, at page 1, to submit any evidence in his possession that pertains to his claim. Thus, the Board concludes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant with respect to these issues and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. With respect to the issue regarding the cervical spine disability, the RO provided VCAA notice to the veteran in June 2002, which was prior to the April 2003 rating decision. Further, the August 2004 VCAA letter concerning the increased rating for diabetes mellitus was provided to the veteran prior to the October 2004 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim, but there has been no notice of the types of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. Despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In that regard, as the Board concludes below that the preponderance of the evidence is against the appellant's claim for cervical spine disability as well as an increased rating for diabetes mellitus, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court addressed directives consistent with VCAA with regard to new and material evidence. The Court stated that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the requirement that VA must provide a claimant notice of what is required to substantiate each element of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006). In other words, VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish his entitlement to the underlying claim for the benefit sought by the claimant. In addition, VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service- connection claim may be affected by the evidence that was of record at the time that the prior claim was finally denied. In order to satisfy the legislative intent underlying the VCAA notice requirement to provide claimants with a meaningful opportunity to participate in the adjudication of their claims, the VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. Therefore, the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. In this case, the June 2002 letter informed the claimant of what evidence was necessary to establish entitlement to service connection. However, the veteran has not been given notice as to what constitutes new and material evidence pursuant to Kent. Nevertheless, as the veteran's claim for cervical spine disability has been reopened below, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, 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. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be 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 noncompensable to as much as 100 percent (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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples 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. Vazquez-Flores. Although all of the requirements of Vazquez-Flores have not been met in the instant case with respect to the issue concerning diabetes mellitus, the Board finds that the notice error did not affect the essential fairness of the adjudication because the VCAA notices fully informed the veteran that he may submit medical evidence as well as lay observations and employer statements in support of his claim. Moreover, in his notice of disagreement, substantive appeal and hearing testimony, the veteran specifically addressed his diabetes mellitus and the effect his disability had on his daily activities as well as the rating criteria for the next higher rating demonstrating that he had actual knowledge of the requirements for an increased rating. Further, the veteran is represented by a state service organization, which would have actual knowledge of the information necessary to substantiate the veteran's claim. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, see Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet.App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim ... served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). Thus, as the veteran had actual knowledge of the requirements for an increased rating for diabetes mellitus and sufficient opportunity to submit evidence, despite the inadequate notice provided to the appellant, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service medical records, VA treatment records, private treatment records and a VA examination reports. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The veteran was afforded a VA examination in May 2007 with respect to his cervical spine disability. He was also afforded VA examinations in July 2004, February 2005, February 2006 and December 2006 with respect to his diabetes. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports obtained contain sufficient information to decide these issues on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination with respect to these issues is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issues of service connection for cervical spine disability and increased rating for diabetes mellitus, type II, with hypertension. II. New and Material Evidence to Reopen a Claim for Cervical Spine Disability A claim of service connection for cervical spine disability was denied by the RO in an April 1977 rating decision because the veteran did not have a current diagnosis of a cervical spine disability. The veteran was informed of the April 1977 rating decision, and he did not file a notice of disagreement to initiate an appeal. Under the circumstances, the Board finds that the April 1977 rating decision became final. 38 U.S.C.A. § 7105(c). Applicable law provides that a claim, which is the subject of a prior final decision, may nevertheless be reopened if new and material evidence is presented or secured. 38 U.S.C.A. § 5108. A request to reopen the veteran's claim was received in February 2002. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claims. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Since the April 1977 rating decision, additional evidence has been associated with the claims file, including VA and private medical records as well as a May 2007 VA examination report. Significantly, this evidence shows that the veteran currently has a cervical spine disability. Moreover, the May 2007 VA examination offers an etiological opinion. The Board finds that the additional evidence submitted since the April 1977 rating decision is new and material. Such medical evidence is not redundant of evidence already in the record at the time of the last final rating decision. Further, the evidence is material because it relates to the unestablished fact of whether the veteran currently has a diagnosis of cervical spine disability and whether it is related to service, which is necessary to substantiate the veteran's claim. See 38 C.F.R. § 3.156(a). Accordingly, the claim of entitlement to service connection for cervical spine disability is reopened. 38 U.S.C.A. § 5108. III. Service Connection for Cervical Spine Disability Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service medical records showed that in May 1972, the veteran complained of a stiff neck. Further, in July 1974, the veteran suffered from a cervical spine sprain. Nevertheless, the July 1975 service examination prior to discharge showed that the veteran's neck and spine were evaluated as clinically normal. In his contemporaneous medical history, the veteran complained of recurrent back pain and a cervical sprain of neck was noted to have occurred in April 1974. However, the examiner noted that back pain referred to heavy lifting, but x-rays were negative. Another service examination for enlistment in August 1976 showed again that the neck and spine were evaluated as clinically normal. The veteran again described recurrent back pain and the same doctor's notation was given. The veteran was afforded a VA examination in December 1976. The examiner noted that the veteran was in a motor vehicle accident in 1974. The examiner observed aching pain in the low back, but was silent with respect to any problems concerning the cervical spine. The first medical evidence of record of a cervical spine disability are June 1994 private hospital records, which showed that the veteran had cervical spondylosis and a ruptured disc of C5-6 on the left. The records also showed that the veteran underwent an anterior cervical fusion of C5- 6. A May 2001 VA examination gave an impression of degenerative arthritis of the cervical spine with status post fusion of cervical spine in 1995 for ruptured disc with minimal continued neck and arm discomfort, stable. Nevertheless, the examiner did not provide an etiological opinion. VA treatment records from May 2000 to June 2007 have also been associated with the claims file and reviewed. The records showed continuing complaints of neck pain. A March 2002 VA x-ray showed no change solid anterior fusion C5-6; vertebral bodies were well-aligned; and minimal C6-7 degenerative disc disease and small osteophytes. A follow up May 2002 MRI showed degenerative disc disease at C4-5 with a posterior disc bulge that contacts with thecal sac with mild deformation; central stenosis at C4-5 and C6-7; bony fusion of C5-6; and large anterior spur off the C7 vertebral body with abundant soft tissue of uncertain significance just anterior to C7. Private treatment records also showed continuing complaints of chronic neck pain. A private November 2002 electrodiagnostic study showed changes consistent with a mild, chronic C7 radiculopathy. A June 2003 private record showed status post anterior cervical disc fusion, C5-6, herniated nucleus pulposus, C4-5 and C6-7 with central neural foraminal stenosis, and left arm radiculopathy, improved. A private July 2004 doctor's statement provided that the veteran had been treated for ongoing neck pain for a number of years. The doctor stated that the veteran's neck disease had progressed to disc involvement and may ultimately require surgical intervention. Nevertheless, neither the VA nor private treatment records discussed above provide any sort of etiological opinion. At the February 2003 and January 2006 RO hearings, the veteran testified that he hurt is neck in service, which essentially led to his subsequent neck surgery in 1994. Essentially, he indicated that he continued to have neck pain from the time he injured his neck in service until the present. The veteran was afforded a VA examination in May 2007. The claims file was reviewed. After taking a thorough history from the veteran and examining the veteran, the examiner's impression was degenerative disc disease of the cervical spine with status post fusion procedure in 1994 with continued neck pain, bilateral arm radiation, and severe disability with progression. A contemporaneous x-ray compared with the March 2002 x-ray, showed preserved cervical column alignment; degenerative changes C4 through C7; fusion of C5 and C6; and no great interval change. The examiner noted that the veteran was in a motor vehicle accident sustaining a neck sprain in 1974. The veteran improved somewhat with treatments, but stated that he had neck pain ever since. The examiner observed that there was no diagnosis of a neck problem at the time of discharge from service or for the year immediately thereafter. The veteran's symptoms regarding his neck became worse in 1993 and he had follow up surgery in 1994. The examiner opined that it was less likely than not that the current cervical disk problem was secondary to the neck sprain incurred in 1974. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient. Thus, based on the medical evidence of record, the Board finds that service connection for cervical spine disability is not warranted. The service examination prior to discharge showed no evidence of cervical spine disability. Moreover, there is no medical evidence of arthritis within one year of service so the service incurrence of arthritis may not be presumed. Significantly, the May 2007 VA examination, after reviewing the claims file and thoroughly examining the veteran, found that it was less likely than not the veteran's current cervical disk problem was related to the neck sprain incurred in service. There is no other medical opinion to refute this finding. The Board acknowledges the veteran's statements and hearing testimony indicating that he has had neck pain since service. However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the veteran is competent to say that he experienced neck pain since service. However, the Board does not believe that the veteran's current cervical spine disability is subject to lay diagnosis. The veteran has not demonstrated that he has the expertise required to diagnose a degenerative disc disease of the cervical spine and link it to service. While the veteran's contentions have been carefully considered, these contentions are outweighed by the May 2007 VA medical opinion, which found no causal nexus between a current cervical spine disability and service. In sum, a preponderance of the evidence is against the veteran's claim for cervical spine disability. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). III. Increased Rating for Diabetes Mellitus, Type II, with Hypertension The present appeal also involves the veteran's claim that the severity of his service-connected diabetes mellitus, type II, with hypertension warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet.App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Diabetes mellitus is currently evaluated under Diagnostic Code 7913 of the Schedule. 38 C.F.R. § 4.119. 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 warrants a 100 percent disability rating. A 60 percent disability rating contemplates 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. A 40 percent disability rating is appropriate for diabetes requiring insulin, restricted diet, and regulation of activities. A 20 percent disability rating contemplates diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. Note (1) to Diagnostic Code 7913 directs adjudicators to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under this diagnostic code. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, a glucose tolerance is not necessary solely for rating purposes. A July 2004 VA examination showed that the veteran had some control problems with his diabetes and was currently on three oral medications. He also had some weight gain over the years in spite of already being overweight. In October 2000, he weighed 249, in December 2001, he weighed 250, and at the examination, he weighed 253. The veteran had no history of coronary artery disease. A recent private stress test was normal. Further, there was no retinopathy found at an April 2004 VA eye examination. He also had no history of renal insufficiency and no complaints of neuropathy. On physical examination, blood pressure was 155/89. In pertinent part, the examiner diagnosed the veteran with erectile dysfunction, secondary to diabetes mellitus. The examiner also noted that with respect to his diabetes mellitus, type II, the current Hba1c was 7.5%, which indicated poor control. However, the examiner observed that the had no history of neuropathy, nephropathy, retinopathy or coronary artery disease. The veteran was afforded another VA examination in February 2005. The claims file was not available for review. The examiner noted that the veteran started insulin in January 2005. It appears that there was some confusion, and the veteran had stopped all of his oral medications. Since then the veteran's blood sugar was running from 250 to 300; it was 376 at the examination, 349 the day before, and 212 last week. The veteran reported having polyuria, polydipsia and polyphagia along with weakness, fatigue and blurred vision. Since Saturday, he had some abdominal pains and nausea. He followed a diet and exercised by walking. His April 2003 eye examination showed no retinopathy. The veteran had no hypoglycemic attacks. The examiner noted that the veteran was on medication for his hypertension. There was no prior history of stroke, seizure or epilepsy. There was no coronary artery disease, myocardial infarction, congestive heart failure, irregularities or palpations of the heart. He denied any peripheral vascular disease, renal disease, or proteinuria. The veteran did have hyperlipidemia for which he was currently on medication. His last urine test in January 2005 showed 100mg/dl of glucose, negative for protein, normal renal function, normal cholesterol, but triglycerides were 295 with normal LDL. His hemoglobin A1C in January was 11. He had no signs or symptoms of peripheral neuropathy of upper or lower extremities. His weight was 255 and his blood pressure was 140/90. Neurological examination was completely intact. The diagnoses was diabetes mellitus, type II, not controlled; erectile dysfunction, secondary to diabetes; hyperlipidemia, secondary to diabetes; hypertension, secondary to diabetes; and onychomycosis of the toenails, secondary to diabetes. VA and private treatment records showed continuing treatment of the veteran's diabetes and hypertension. A September 2005 VA treatment record showed that starting insulin was again discussed; however, the veteran resisted. Nevertheless, a January 2005 record showed that the veteran was started on insulin. VA treatment records showed that the veteran reported hypoglycemic events, but there was no showing of any hospitalizations due to these events. Further, the veteran indicated that his activities had not changed due to his diabetes. In fact, a December 2005 VA treatment record showed that regular physical activity was recommended. Importantly, with respect to the veteran's hypertension, treatment records do not show that the veteran's diastolic pressure was predominantly 100 or more, or that his systolic pressure was predominantly 160 or more. At the January 2006 RO hearing, the veteran stated that he was on insulin, a very controlled diet and oral medication for his diabetes. The veteran also indicated that he was supposed to exercise per his physician. However, an October 2006 statement from the veteran indicated that he had daily regulation of his activities. The veteran was afforded another VA examination in February 2006. The veteran stated that he was on insulin that he took three times a day and oral medication. He also indicated that he was on medication for his blood pressure, which was not controlled. The veteran complained of numbness and tingling of his legs up to the level of his knees for one year and numbness and tingling of his hands for two years. The examiner also noted that the veteran had elevated cholesterol and the veteran's recent profile showed that he had impression metabolic syndrome as a secondary feature to his diabetes. The veteran provided that he had erectile dysfunction for three years that had not been treated and numbness and tingling in his hands. The veteran indicated that he had no history of heart disease, diabetic eye or kidney involvement. On examination, blood pressure was 140/86. The impression was diabetes mellitus, type II, insulin dependent, uncontrolled; hypertensive vascular disease, on medication with marginal control, secondary o diabetes; peripheral neuritis of the hands and legs and feet, secondary to diabetes; hypercholesterolemia with associated metabolic syndrome, secondary to diabetes; and erectile dysfunction, secondary to diabetes. The examiner observed that the veteran did not give a history suggestive of hypoglycemia or acidosis. His treatment included that of diet, insulin preparations and oral medications. His weight was 259, which represented no change. His diabetes did not restrict his activities. The symptoms were those of numbness and tingling in his hands and of his feet. He had no objective cardiovascular findings. His heart examination was normal. The neurological findings were those of diminished tendon reflexes and sensation of the extremities. An eye examination was considered not applicable. He had no bowel or bladder impairment. A PSA determination recently was .7 and his BUN was 14 with creatinine of .9. His recent fasting blood sugar was 151 and his hemoglobin A1C was 11.1. An addendum to the examination stated that the corrected limitations incurred by this veteran with regard to his diabetes were just that he could only walk four or five blocks at a time. He could not ride an exercise bike like he could. His general level of vitality was quite reduced. A separate February 2006 VA examination report for peripheral nerves by the same examiner indicated that the veteran peripheral neuritis of the hands and legs interfered with the veteran daily activities in terms of weakness of grip, diminished sensation, and moderation of his ability to do any walking or an exercise bicycle. Significantly, an October 2006 private medical statement indicated that the veteran was an insulin dependent diabetic and that he was also on a restricted diabetic diet. He further indicated the veteran also had daily activity regulations associated with his diabetic state. Based on the additional evidence concerning possible regulations of the veteran's activities, the veteran was afforded another VA examination in December 2006. The claims file was reviewed. The examiner noted that the veteran had no change in his diabetes. He took oral medications and regular insulin with each meal. His last hemoglobin was very elevated indicating poor control of his diabetes. The veteran has had some hypoglycemic episodes as recently as this past weekend that occur in the a.m. when the veteran had not eaten. The episodes responded to orange juice and food. The veteran had not been prescribed any activity restrictions due to his diabetes. The veteran was claiming activity restrictions due to pain in his calves and feet when he tried to walk. His walking distance was limited by to about one- half block. The examiner noted that the significant part of the veteran's history was that he had low back pain radiating down to both legs when walking and standing. He reported cramping in his calves when walking as well as pain in the bottom of his feet and both ankles. The veteran had a long history of moderate obesity. He had not had any episodes of ketoacidosis. His weight was slowly gained over the years. His weight was about 250 when his diabetes was diagnosed in 2001 and was currently 266. He had no history of heart disease and no eye or skin complaints. His bowel and bladder function has been normal. The examiner noted that the veteran was diagnosed with hypertension at the same time as he was diagnosed with diabetes and he was currently on medication for his hypertension. However, his blood pressure control had been less than optimal. The veteran had not had any renal failure, stroke or known heart disease. The veteran was not employed and considered himself disabled because of his leg and pain in his feet. His last job was driving a school bus. On physical examination, the veteran's blood pressure readings were 151/85, 146/86 and 148/84. The impression was no regulation of activities due to diabetes, but rather the veteran's activity level had decreased significantly due to leg, ankle and foot pain and his symptoms were classic for lumbar spinal stenosis. The examiner observed that the veteran's diabetes was currently poorly controlled with a hemogloblin A1C that was markedly elevated and glucosuria. The examiner also provided that the veteran's hypertension was not secondary to his diabetes as they were diagnosed at the same time. His hypertension was due to genetic factors and excessive weight gain. His hypertension was also currently poorly controlled, but he had no known complications of his hypertension. Given that the claims file was reviewed by the examiner and the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds this examination to be sufficient for rating purposes. Initially, the Board acknowledges that certain medical evidence of record suggests that the veteran has additional disabilities associated with his diabetes mellitus. The October 2004 rating decision granted service connection for erectile dysfunction as secondary to the veteran's service- connected diabetes mellitus. Further, the August 2006 rating decision awarded service connection for peripheral neuritis of the bilateral upper and lower extremities associated with the veteran's service-connected diabetes. As an appeal has not been initiated by the veteran with respect to these awards, these issues are not currently before the Board. Based on the medical evidence of record, a higher disability rating in excess of 20 percent for the veteran's diabetes mellitus, type II, with hypertension is not warranted. Significantly, although the veteran's diabetes requires insulin and a restricted diet, there is no medical evidence that regulation of activities has been prescribed by a medical doctor. The Board recognizes that the veteran has indicated that his activities have to be regulated. Further, the October 2006 private medical statement and the February 2006 VA examination also indicated that the veteran's activities were regulated or limited due to his diabetes. However, this evidence merely shows that the veteran is unable to do certain activities, but does not show that a doctor has actually regulated his activities. On the contrary, it appears that the veteran's VA primary care physician has recommended exercise and physical activity to the veteran. Further, this evidence has minimal probative value when weighed against the December 2006 VA examination. The December 2006 VA examiner reviewed the claims file and thoroughly examined the veteran to specifically offer an opinion with respect to whether regulation of the veteran's activities was necessary due to the veteran's diabetes. The examiner found that the veteran's activities were not restricted by his diabetes, but rather by his low back disability. Moreover, the February 2006 VA examiner appeared to indicate that the veteran's restrictions for his daily activities were due to his peripheral neuritis. Thus, to award a higher rating for the veteran's diabetes mellitus for limitations associated with other service-connected disabilities, in particular, his peripheral neuritis and low back disability, for which the veteran is already being compensated, would result in pyramiding, the evaluation of the same disability under various diagnoses, which is to be avoided. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Thus, the preponderance of the evidence is against a finding that the veteran must regulate his activities due to his diabetes, which is required to warrant a higher 40 percent rating. Further, although recently the veteran has reported hypoglycemic episodes, the medical evidence of record does not show that he has been hospitalized due to episodes of ketoacidosis or hypoglycemic reactions, nor does he visit a diabetic care provider at least twice a month or more so as to warrant a higher 60 percent or 100 percent disability rating. Moreover, as noted above, any associated compensable complications have already been evaluated separately. Further, there has been no showing that the veteran's hypertension warrants a compensable rating. Diastolic pressure has not predominantly been 100 or more, and systolic pressure has not been predominantly 160 or more to warrant a 10 percent rating under Diagnostic Code 7101 for hypertensive vascular disease. 38 C.F.R. § 4.104. In sum, with the exception of the disabilities that have been assigned separate ratings, the veteran current symptoms associated with his diabetes are adequately contemplated in the current 20 percent disability rating. Thus, a preponderance of the evidence is against a rating in excess of 20 percent for diabetes mellitus, type II, with hypertension. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service-connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER The claim for entitlement to service connection for cervical spine disability is reopened. However, entitlement to service connection for cervical spine disability is not warranted. Further, a rating in excess of 20 percent for the veteran's service-connected diabetes mellitus, type II, with hypertension is not warranted. To that extent, the appeal is denied. REMAND The current appeal also involves the issues of increased ratings for the veteran's service-connected right ankle sprain, bilateral ingrown toenails and dermatitis of the groin. While the veteran has received VCAA letters pertaining to an increased rating for diabetes mellitus as well as numerous service connection issues, it does not appear that the veteran has received sufficient VCAA notice informing him of the information and evidence necessary to substantiate these increased rating issues on appeal. Rather, it appears that the VCAA notices, which were sent in March 2001 and August 2004 in response to the claims for increased rating submitted by the veteran, treated these issues as service connection claims rather than claims for increased ratings. Thus, in order to comply with the VCAA, the RO should send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) with respect to these issues. Further, as previously stated in the analysis part of this decision, during the pendency of this appeal, the Court issued decisions in Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). The VCAA notice should also comply with these Court decisions. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the veteran a VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) with respect to the issues of increased ratings for right ankle sprain, bilateral ingrown toenails and dermatitis of the groin. The veteran should be advised to submit any pertinent evidence in his possession. The notice should also include an explanation as to the information or evidence needed to establish a disability rating and effective date for the issues on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet.App.473 (2006). Moreover, the VCAA notice should also include: (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). 2. After completion of the above and any additional development deemed necessary by the RO, the RO should review the expanded record and determine if the benefits sought on appeal can be granted. If the benefits sought on appeal are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs