Citation Nr: 0815145 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 03-01 417 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office(RO) in Houston, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 80 percent for hypertension and renal failure secondary to diabetes mellitus. 2. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. 3. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity secondary to diabetes mellitus. 4. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from June 1966 to June 1968. His awards and medals include the Purple Heart Medal and the Combat Infantryman Badge. He was awarded the Purple Heart Medal after he sustained an open wound to the right leg when injured by a punji stick while on a search-and-destroy mission in Vietnam in April 1967. A review of the evidence of record reveals that by rating decision dated in January 2002, service connection for diabetes mellitus as a result of exposure to herbicides was granted. A 20 percent raring was assigned, effective January 24, 2001, the date of receipt of the veteran's claim for disability benefits. Service connection was also granted for peripheral neuropathy of the right lower extremity secondary to diabetes mellitus, peripheral neuropathy of the left lower extremity secondary to the diabetes mellitus, and hypertension and renal failure secondary to the diabetes mellitus. 10 percent evaluations were assigned for peripheral neuropathy of each lower extremity and a 30 percent rating was assigned for the hypertension and renal failure. The effective date was January 24, 2001, the date of receipt of the veteran's claim for disability benefits. By rating decision dated in October 2007, the aforementioned rating action was amended to reflect an 80 percent disability rating for the diabetic neuropathy with hypertension and coronary artery disease, effective January 24, 2001. Service connection is in effect for other disabilities, including post-traumatic stress disorder. With consideration of the bilateral factor, a combined disability rating of 90 percent was assigned, effective January 24, 2001, the date of receipt of the veteran's claim for disability benefits. FINDINGS OF FACT 1. The veteran is not shown to be precluded from more than sedentary activity because of persistent edema and albuminuria, his BUN is not shown to be more than 80 milligrams percent, and his creatinine is not shown to be more than 8 milligrams percent. 2. The medical evidence of record does not show regulation of activities to control the veteran's blood sugar. 3. The medical evidence does not show paresthesia involving either lower extremity and there is no evidence of moderate paralysis, evidenced by or any changes of either lower extremity. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 80 percent for diabetic neuropathy with hypertension and coronary artery disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.115, Diagnostic Code 7541 (2007). 2. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2007). 3. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124 a, Diagnostic Code 8520 (2007). 4. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124 a, Diagnostic Code 8520 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating claims for VA Benefits. 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, and 3.326 (a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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) (2007); 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 his possession that pertains to the claim in accordance with the provisions of 38 C.F.R. § 3.159 (b) (1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A review of the evidence of record reveals that as early as March 2001, the veteran was informed to provide any medical evidence or treatment and diagnosis of diabetes "if you have not already done so." Medical records were requested and received from a Federal correctional facility in Beaumont, Texas, later in 2001. In July 2001 the veteran was sent a letter indicating that records had been requested from a facility in Galveston, Texas, for the period beginning January 1, 2000. The veteran was told that he was responsible for ensuring that the records were received by VA. He was further told that if he believed there were additional relevant treatment records that would assist VA in supporting his claim, he was to notify VA within 60 days of the nature of the evidence and where it could be obtained. More recently, in March 2006, the veteran was provided with information as to how disability ratings are assigned and as to the beginning date of entitlement or increased entitlement to a benefit by letter dated in March 2006. The case was remanded by the Board in February 2007 for further development. In February 2007, the veteran was again informed as to how he could help VA and how VA would help him in developing evidence pertinent to his claims. He was specifically told that he was to provide VA with any evidence or information he might have pertaining to his claims. Recently, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), it was indicated that at a minimum, VA must notify a claimant that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability in question and the effect that worsening has on the claimant's employment and daily life. Further, it was indicated that if the code under which the claimant was rated contained 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 had on the claimant's employment and daily life, the Secretary had to provide at least general notice of that requirement to the claimant. It was also related that 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. The February 2007 communication was not as detailed as one might like, but it did refer to asking the veteran to provide dates and places of treatment for the disabilities at issue. The veteran was asked to submit medical evidence with regard to the disabilities and he was told to submit evidence showing that the disorders had increased in severity. He was told that the evidence might include a statement from a doctor, and he was also told that he could submit statements from other individuals who were able to describe further knowledge and personal observations and what other disabilities had become worse. 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.A. § 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 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 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 actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration should also 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 preadjudicatory section 5103 (a) notice error non- prejudicial. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, the Board finds that the notice error did not affect the essential fairness of the adjudication. In the communication referred to above, the veteran was told that the types of evidence he could submit might be statements from a doctor containing clinical findings, and statements from individuals who were able to describe from their knowledge and personal observations in what manner his disabilities had become worse. Further, the veteran is represented by the Texas Veterans Commission, and that organization is well aware of the various criteria for establishing higher disability ratings and is reasonably expected to have made the veteran aware of the various criteria for higher disability ratings. Accordingly, the Board finds that any error in not providing a single notice to the veteran covering all content requirements is essentially harmless. See, for example, 38 C.F.R. § 20.1102. The veteran has not claimed that VA has failed to comply with the notice requirements of the VCAA and the Board finds that the provisions of the VCAA have been essentially satisfied. Next, in claims for disability compensation, the VCAA duty to assist requires VA provide medical examinations. A review of the record in this case reveals that VA attempted to schedule the veteran for examinations several different times during the course of the appeal. However, for most of the appeal period, the veteran has been incarcerated and it is the policy of the Texas Bureau of Prisons not to escort veterans while incarcerated to examinations for VA rating purposes. However, it appears the veteran was released from prison within the past year or two and reports of VA treatment and evaluation of the veteran by VA on periodic occasions in 2007 have been obtained and associated with the claims file. The record does show that the veteran was scheduled for a comprehensive rating examination by VA on June 15, 2007. For whatever reason, the veteran did not show or call to cancel the appointment. However, the reports of his outpatient visits and some reports of medical treatment during his incarceration have been associated with the file and have been reviewed. The Board finds that the available medical evidence is sufficient for an adequate determination of each issue under consideration. Pertinent Law and Regulations Disability evaluations are determined by the application of VA's Rating Schedule, and they are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In evaluating the level of impairment, the disability must be considered in the context of the entire recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial raring following an initial award of service connection for the disorder. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found--a practice known as "staged" ratings. The Board has reviewed all the evidence in the claims file including the veteran's contentions, his medical records, VA records, and reports of medical records during his incarceration. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128 (2000). Diabetic Neuropathy with Hypertension and Coronary Artery Disease Diagnostic Code 7541 provides that renal involvement in diabetes mellitus will be rated as renal dysfunction. Accordingly, a disability rating of 80 percent is assigned for renal dysfunction with persistent edema and albuminuria with BUN, 40 to 80 milligrams percent; or, creatinine 4 to 8 milligrams percent; or, generalized poor health, characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The next higher rating of 100 percent is assigned when the renal function requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN with more than 80 milligrams percent; or, creatinine, more than 8 milligrams percent; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115. In view of the foregoing, the Board has reviewed the medical evidence available for the past several years. The 80 percent disability rating assigned since the date of receipt of the veteran's claim for disability benefits recognizes very significant impairment. However, the medical evidence does not show the presence of a disability picture that would warrant the assignment of a total schedular disability evaluation. The medical records from the veteran's incarceration reveal that in September 2001 he was given a creatinine level of 2.7. His BUN at that time was 21 and it was noted he had renal failure. In March 2002 his BUN was 58 and the creatinine level was 1.8. He was described as having borderline cardiomegaly. In June 2002 his BUN level was 41. Treatment records showed persistent edema and slightly elevated blood pressure on medication. At the time of a VA outpatient visit in April 2007, the veteran stated that he had hypoglycemic symptoms every morning. He reported having had a hypoglycemic coma that required hospitalization once during the past 10 years. A current blood pressure reading was made of 170/70. Current assessments included: hypertension, not controlled; diabetes, with blood sugars running too low; chronic dependent edema of unknown etiology; and a history of transient ischemic attack versus a stroke in 2005. It was noted the veteran had just recently been released from prison after more than a 16-year period of incarceration. The veteran was seen in cardiology consultation in May 2007. On current examination his weight was listed as 161 pounds. The extremities revealed 2-3 plus edema. Laboratory tests included a BUN of 55 and a creatinine level of 1.8. Reference was made to an April 2007 chest X-ray study. The examiner indicated that it showed poor inspiration, but there did not appear to be any active cardiopulmonary process. On a visit later in May 2007, the veteran's height was listed as 66 inches and his weight was recorded as 153 pounds. Blood pressure was 139/58. He reported to the clinic to get a Glucometer. He reported no symptoms several days later in May 2007 when his blood glucose was reported as 207 milligrams/deciliters. His blood pressure was reported as 132/60. At the time of another visit in May 2007 the veteran complained about concern about his blood pressure. He stated the blood pressure that morning was only 99/40. He felt lightheaded at that time. Currently, the blood pressure was recorded as 143/60. His medication was adjusted. At the time of a June 2007 visit the veteran indicated he had not had any further problems with dizziness since the medication adjustment. Fasting glucoses had been between 88 and 130. His meter was described as functioning. His creatinine was recorded as 2.2 and his BUN level was 52. Blood pressure was 139/70. On examination of the extremities there was 2-plus pitting edema bilaterally. Reference was made to a chest X-ray done in April 2006 that showed normal heart size. There was poor inspiration noted. It was stated that the hypertension and the diabetes were under fair control. At the time of a diabetes tracking outpatient visit in July 2007, glucose level was recorded as 212. Blood pressure taken earlier in June 2007 was recorded as 140/63. The veteran's weight was recorded as 149 pounds at that time. When the veteran was seen in August 2007, his weight was recorded as 159 pounds. Blood pressure was 141/62. During a visit later in August 2007, he complained of lower leg swelling and body pain the past 3 to 4 weeks. He also referred to mild shortness of breath climbing stairs and walking around. Current examination showed 1-plus pitting edema bilaterally. Distal sensation of pulses was grossly intact. Blood pressure was 141/62. At the time of an October 2007 visit, his weight had increased to 164 pounds. Blood pressure was 140/69. He complained that he had been experiencing more edema for the past month and his weight had gone up "quite a bit." Examination of the extremities showed 3-plus pitting edema bilaterally. Creatinine was 2, BUN was 54, and albuminuria was 3.2. Findings on other visits that month were not indicative of the presence of impairment such that a total schedular evaluation is in order. In view of the foregoing, as noted above, the Board recognizes that there is a significant level of impairment attributable to the veteran's diabetes. However, the medical evidence does not show the presence of such incapacitating symptomatology that the assignment of a total schedular rating of 100 percent is in order at any time during the appeal period. The veteran has been seen on a regular basis during the past year or so, but there is no evidence that he has had to be hospitalized. Further, there is no indication of any progressive loss of weight or strength. A 100 percent rating requires regular dialysis or exclusion from more than sedentary activity with higher BUN scores or creatinine scores than has been demonstrated by the veteran on his various visits during the past several years. Increased Rating for Diabetes Mellitus The veteran's diabetes mellitus is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this Code section, a 20 percent raring is assigned for diabetes requiring Insulin, diet, or; a hypoglycemic agent and restricted diet. The next higher rating of 40 percent is assigned for diabetes that requires Insulin, restricted diet, and regulation of activities. The next higher rating of 60 percent is assigned for diabetes requiring Insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring 1 or 2 hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. The maximum schedular rating of 100 percent is assigned for diabetes that requires more than one daily injection of Insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis, hypoglycemic reactions requiring at least 3 hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Code 7913. Having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the 100 percent rating currently in effect is the most appropriate one for the entire appeal. The Board notes that the veteran has had complaints involving his diabetic nephropathy and he also has complaints referable to peripheral neuropathy involving each lower extremity. However, separate evaluations are assigned for each of these and symptomatology related to each disorder cannot be considered in the assignment of the rating for diabetes mellitus itself. See 38 C.F.R. § 4.14. (The evaluation of the same disability under various diagnoses is to be avoided). However, Note (1) following 38 C.F.R. § 4.119, Code 7913, provides for the separate evaluation of compensable complications arising from the diabetes. The treatment records during the veteran's incarceration did not show the use of Insulin. The VA outpatient visits in 2007 have been reviewed. The glucose levels were reported in the 80's and 90's fasting and there was no indication of the presence of hypoglycemic symptoms. The veteran's blood sugars were described as "running a little too low" at the time of the October 2007 visit, but there is no indication that he is on a restricted diet, and has had his activities regulated because of the severity of his diabetes, as required by the next higher rating of 40 percent. Accordingly, a disability rating in excess of 20 percent for the diabetes mellitus is not authorized for any time during the appeal period. Increased Disability Ratings for Peripheral Neuropathy Involving the Lower Extremities As provided in Note (1) the Board is directed to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized for organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of loss or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124 a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for peripheral nerves offer unilateral involvement; when bilateral, they are combined with application of the bilateral factor. Id. The use of terminology such as "mild," "moderate," and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and, therefore, neuritis and neuralgia of that nerve. 38 U.S.C.A. § 4.124 a, Code 8520. Disability ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis which is mild, moderate, or moderately severe in degree, respectively. Id. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Code 8520. In this case, the Board finds that the competent evidence of record does not show that the veteran's symptoms warrant the assignment of more than a 10 percent disability rating for peripheral neuropathy involving either lower extremity. The medical records with regard to peripheral neuropathy of the lower extremities reveal that during the veteran's incarceration did not show decreased sensation or motor strength, or an impaired gait or other organic changes attributable to neuropathy. Additional pertinent records include the report of a VA podiatry clinic outpatient visit in June 2007. The veteran complained of painful feet. A history of multiple fractures of both feet was noted. Current X-ray studies showed healed fractures of every metatarsal of the feet with arthritis in all joints. The dorsalis pedis and posterior tibial pulses were plus 2/4 bilaterally. Deep tendon reflexes, patellar and Achilles tendon reflexes were within normal limits bilaterally. Sharp/dull, vibratory, and proprioception sensory function were all intact bilaterally and symmetrical. There was no clonus and Babinski's' reflex was flexor. There was no paresthesia involving either lower extremity. In view of the foregoing, the Board finds that the competent evidence of record does not show that the veteran's symptoms related to peripheral neuropathy of either lower extremity warrant a higher schedular rating. There has been no indication of the presence of organic changes. Further, there is no indication of weakness or atrophy involving either extremity. Accordingly, an evaluation in excess of 10 percent for either extremity is not warranted. Finally, the Board has considered whether the case should be referred for extraschedular consideration under the provisions of 38 C.F.R. § 3.321 (b) (1). In this respect, the Board notes that the medical evidence fails to show that the veteran has claimed that he has required frequent periods of hospitalization for his diabetic symptomatology. In sum, there is no indication in the record of such an unusual disability picture that application of the regular schedular standards is impractical, especially in the absence of any evidence of marked interference of employment. Therefore, the Board finds that the criteria for submission for an extraschedular rating pursuant to 38 C.F.R. § 3.321 (b) (1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER An initial disability rating in excess of 80 percent for diabetic neuropathy with hypertension and coronary artery disease is denied. A disability rating in excess of 20 percent for diabetes mellitus is denied. An initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. An initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs