Citation Nr: 1000064 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-36 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a rating in excess of 30 percent for labyrinthitis. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus with carotid artery disease from October 18, 2005. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1967 to July 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Providence Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for diabetic peripheral neuropathy of the bilateral lower extremities and the right upper extremity and assigned a 10 percent evaluation effective October 18, 2005, continued to rate labyrinthitis as 30 percent disabling, denied service connection for hypertension, and decreased the evaluation assigned for diabetes mellitus from 40 percent to 20 percent disabling effective October 18, 2005 while recharacterizing the disability as diabetes mellitus with carotid artery disease. In his May 2006 notice of disagreement, the Veteran limited his appeal to entitlement to an evaluation in excess of 30 percent for labyrinthitis and an evaluation in excess of 20 percent for diabetes mellitus. The propriety of the reduction in the rating for diabetes mellitus was not raised by either the appellant nor his representative and that determination is not currently on appeal and will not be further discussed. FINDINGS OF FACT 1. The Veteran failed to appear for VA examination scheduled in March 2006, regarding a his claim for an increased evaluation for labyrinthitis and has not provided an explanation or good cause for his failure to report for that examination; labyrinthitis is rated 30 percent disabling, which is the maximum schedular rating. 2. The service-connected diabetes mellitus is manifested by requiring insulin and a restricted diet, regulation of activities is not shown. CONCLUSIONS OF LAW 1. A rating higher than 30 percent for labyrinthitis is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.655, 4.87, Diagnostic Code 6204 (2009). 2. The criteria for an evaluation in excess of 20 percent for diabetes mellitus from October 18, 2005, have not been met. 38 U.S.C.A. §§ 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in October 2005 and January 2006, prior to the date of the issuance of the appealed April 2006 rating decision. The Board further notes that, in March 2006, the Veteran was notified that a disability rating and an effective date for the award of benefits are assigned in cases where service connection is warranted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorder described by the Veteran. Additionally, he was afforded a VA examination in November 2006 that was fully adequate for the purposes of determining the severity of his service-connected diabetes mellitus. See Barr v. Nicholson, 21 Vet. App. 303 (2007). A VA examination was scheduled in March 2006 to assess the severity of his service-connected labyrinthitis; however the Veteran failed to report for the scheduled VA examination and good cause has not been shown. The Board observes that the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a). The Veteran has not satisfied his responsibilities in the development of his claim for labyrinthitis. In light of the foregoing, the Board finds that VA has developed all relevant facts to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the duty to assist. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the 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 this claim for increase, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Labyrinthitis The Veteran's service-connected labyrinthitis is evaluated pursuant to Diagnostic Code 6204. Under Diagnostic Code, a peripheral vestibular disorder is rated 30 percent for dizziness and occasional staggering, which is the maximum schedular rating. A note following the Diagnostic Code provides that hearing impairment should be rated separately rated. The Veteran has already been assigned a 10 percent rating for bilateral hearing loss and a 10 percent rating for tinnitus. The 30 percent rating is the maximum schedular rating under Diagnostic Code 6204. The Veteran has indicated that he has Meniere's disease, however, Providence VA Medical Center (VAMC) treatment records dated from 2000 to 2006 do not show a diagnosis of Meniere's disease or that the Veteran has attacks of vertigo and cerebellar gait occurring one to four times per month and an analogous rating to Meniere's disease is not warranted. See Diagnostic Code 6205. Furthermore, in an attempt to determine the severity of the Veteran's labyrinthitis, VA scheduled the Veteran for an ear, nose, throat (ENT) examination in March 2006, but the Veteran failed to appear and he has never offered an explanation or attempted to explain why he did not appear for the VA examination. The provisions of 38 C.F.R. § 3.655 state that when a claimant fails to report for an examination in conjunction with a claim for an increased rating of a service connected disability, the claim shall be denied unless good cause is established as to why the claimant failed to appear. In the case at hand, since the Veteran failed to report for the March 2006 examination nor has he established good cause, the claim for an evaluation in excess of 30 percent is denied. 38 C.F.R. § 3.655 (b). As the preponderance of the evidence is against the claim for increase, the benefit-of-the-doubt standard does not apply. 38 C.F.R. § 5107(b). II. Diabetes Mellitus Historically, an August 2001 rating decision granted service connection for type 2 diabetes mellitus and assigned an evaluation of 40 percent, effective July 9, 2001. A May 2004 rating decision granted an earlier effective date for service connection of diabetes mellitus effective May 8, 2001 noting that the date of law which liberalized the issue of diabetes mellitus due to Agent Orange exposure changed from July 9, 2001 to May 8, 2001. The Veteran's 40 percent rating for type 2 diabetes had been in effect since May 8, 2001 and it was reduced effective October 18, 2005, the date of the claim for an increased rating. As noted above, the Veteran has not appealed the reduction in rating. As such the Board will address whether a rating in excess of 20 percent for diabetes mellitus with carotid artery disease from October 18, 2005 is warranted. A 20 percent rating under 38 C.F.R. § 4.119, Diagnostic Code 7913 (2007), contemplates diabetes mellitus requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent evaluation is assigned for the requirement of insulin, a restricted diet, and regulation of activities. A 60 percent evaluation is assigned when the requirements of a 40 percent evaluation are present with, in addition, 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 100 percent evaluation is assigned where the requirements of a 40 percent evaluation are present with more than one daily injection of insulin required, and in addition, there are episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. After a full review of the record, including the medical evidence and the contentions of the Veteran and his representative, the Board concludes that a rating in excess of 20 percent for diabetes mellitus with carotid artery disease is not warranted. The evidence of record shows that the Veteran required insulin and a restricted diet. Providence VA Medical Center treatment records dated from 2000 to 2005 noted the importance of maintaining consistent diet and insulin dosing. June to September 2001 VA treatment records reflected that the Veteran was active at work five days a week. He was offered to participate in an exercise program and was encouraged to continue his regular physical activities. In May 2005, he was advised to maintain his diet, activity level, and weight reduction. The Board notes that prior to October 18, 2005, the medical evidence of record showed that the Veteran was encouraged to engage in physical activities. The evidence of record did not show regulation of activities, in fact the Veteran was encouraged to continue his current activities. The term "regulation of activities," as defined by Diagnostic Code 7913, requires that a claimant have a medical need to avoid not only strenuous occupational activity, but strenuous recreational activity as well. Camacho v. Nicholson, 21 Vet. App. 360, 363-64, 366 (2007) (noting, further, that the use of the conjunctive "and" in Diagnostic Code 7913 requires that all criteria be met to support a 40 percent rating). The Board acknowledges a September 2001 statement from an attending physician for temporary disability insurance that reported that the Veteran was unable to work and perform duties that would make him capable for employment, however, the attending physician attributed this solely due to the Veteran's PTSD. A December 2003 VA treatment record indicated that the Veteran was advised to not return to work due to his rage. The Board also notes that the Veteran was granted TDIU effective August 22, 2001 to October 15, 2003 and from January 1, 2004 due to his service-connected disabilities, which included PTSD rated at 70 percent from July 9, 2001, 100 percent from October 15, 2003, and 70 percent from January 1, 2004, as well as due to his diabetes mellitus, labyrinthitis, left hand neurological deficit, left elbow disorder, hearing loss, tinnitus, and residual myringoplasty of the left ear. However, the Board notes that there was no clinical evidence nor has the Veteran or his representative contended that his activities at work had to be regulated due to his diabetes mellitus or that he was unable to maintain a fulltime job solely due to his diabetes mellitus. On November 2005 VA examination, the Veteran reported that his diabetes was less well controlled and that he had to increase his insulin dose. He denied any episodes of ketoacidosis. He reported some hyperglycemic reactions manifested by tremors and diaphoresis. The symptoms resolved with the use of glucose tablets. He has not required hospitalization for his diabetes. He is on a diabetic diet and reported an active lifestyle with daily exercise. He reported some restrictions in activities such as making models due to numbness in his fingertips. He denied any visual complications of diabetes and there was no retinopathy. The impression was diabetes mellitus, unchanged. It was noted that the Veteran's diabetic peripheral neuropathy of the bilateral upper and lower extremities, mild, and carotid disease on the right was related to his diabetes mellitus. Records considered in conjunction with the Veteran's claim for Social Security disability benefits were associated with the claims file in March 2006. The records included private treatment records dated from 2000 to 2001 that showed treatment for diabetes mellitus. There was no mention of regulation of activities. Hence, the Board finds that the medical evidence does not show avoidance of strenuous recreational activity. Although the Veteran's insulin dosage may have changed, in order to receive a higher disability rating the evidence would have to show that in addition to insulin injection(s) and a restricted diet, the Veteran's activities were regulated. As such the criteria for the assignment of a 40 percent rating has not been met. The evidence also did not show that he had episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations, visited a diabetic care provider at least twice a month, or had progressive loss of weight or strength. While the evidence shows a diagnosis of carotid artery disease, there is no medical evidence showing any compensable manifestations which would warrant a separately compensable evaluation. As such, there is no evidence which would support either a 60 percent rating or 100 percent rating. Accordingly, the Board finds that a rating in excess of 20 percent for diabetes during the appeal period is not warranted. The Board also notes that the April 2006 rating decision granted service connection for peripheral neuropathy of the bilateral lower extremities and right upper extremity (service connection was already in place for a neurological deficit of the left upper extremity) as secondary to the Veteran's diabetes mellitus and assigned each a 10 percent rating, effective October 18, 2005. As these matters have been separately rated and the Veteran did not appeal the assigned ratings, these matters are not currently before the Board. No other diagnostic code is applicable to the veteran's type 2 diabetes mellitus, to include no other endocrine system diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Extraschedular consideration The Board has also considered whether higher ratings are warranted on an extra-schedular basis. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Here, as discussed above, the rating criteria for the service-connected labyrinthitis and diabetes mellitus with carotid artery disease reasonably describe the Veteran's disability level and symptomatology for the designated appeal periods. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations for the above designated rating periods are adequate, and no referral for an extraschedular evaluation is required. Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009). ORDER A rating in excess of 30 percent for labyrinthitis is denied. A rating in excess of 20 percent for diabetes mellitus from October 18, 2005, is denied. ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs