Citation Nr: 1002285 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 06-20 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for diabetes mellitus with hypertension and peripheral vascular disease of the lower extremities, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from July 1970 to February 1972. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. While the Veteran had requested a Travel Board hearing in his VA Form 9 submitted in June 2005, by a signed September 2007 submission the Veteran withdrew that hearing request. The Veteran's VA examination in November 2008 presents the possibility of a separate disability rating assignable for urinary incontinence associated with the Veteran's diabetes mellitus, and that issue has yet to be addressed by the RO. Accordingly, that issue is referred to the RO for appropriate action. As discussed in the Reasons and Bases portion of this decision, the Veteran has also been service connected and separately rated for erectile dysfunction and peripheral neuropathy of both lower extremities, but these were not the subject of the appealed rating decision, and ratings for these service-connected disorders are not the subject of a pending appeal to the Board. Hence, the Board is without jurisdiction to address the ratings assigned for those disorders, notwithstanding their having been service connected as due to either diabetes mellitus or Agent Orange exposure. FINDINGS OF FACT 1. For the entire rating interval in question, the Veteran's diabetes has not required regulation of activities. 2. For the entire rating interval in question, the Veteran's hypertensive vascular disease associated with his diabetes mellitus requires continuous control with antihypertensive medications, but has diastolic pressure predominantly below 110 and systolic pressure predominantly below 200. 3. For the entire rating interval in question, a separate compensable disability of peripheral vascular disease associated with the Veteran's diabetes mellitus is not shown for either lower extremity. CONCLUSIONS OF LAW 1. For the entire rating interval, the criteria for a rating higher than 20 percent for diabetes mellitus with peripheral vascular disease of the lower extremities, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, 4.119, Diagnostic Codes 7114, 7913 (2009). 2. For the entire rating interval, a separate 10 percent evaluation, but no more, is assigned for hypertensive vascular disease associated with the Veteran's diabetes mellitus. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Supplemental Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. In a claim for increased rating, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). The Veteran was afforded a VCAA notice letter in January 2005, prior to the appealed RO adjudication of the claim for increased rating in September 2005, which informed him of the notice and duty-to-assist provisions of the VCAA, and of the information and evidence necessary to substantiate the claim for an increased rating, as well as informing of the respective roles of the Veteran and VA in developing the claim and obtaining evidence, with the ultimate responsibility for ensuring that relevant evidence is obtained being on the Veteran. This letter also provided the Veteran with general notice of the evidence required to satisfy the claim for increased rating. He was also afforded notice of how disability ratings and effective dates are assigned, by a notice letter afforded him in March 2006, by which the RO was then explicitly complying with the requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was thereafter afforded further readjudication of the claim in a May 2006 SOC, an August 2007 SSOC, a September 2008 SSOC, and a May 2009 SSOC. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that the RO appropriately assisted the Veteran in obtaining indicated treatment and evaluation records, and associated all records obtained with the claims folder. Service treatment records were previously obtained and associated with the claims file. The RO also informed the Veteran, including in the appealed rating action and by an SOC and SSOCs, of records obtained, and thus by implication of records not obtained, in furtherance of his claim. Although the Board recognizes that a disability such as diabetes mellitus may alter in its severity at any time, judicial efficiency precludes continuous updating of the evidentiary record so as to assure that no more recent event or disease progression as pertaining to the Veteran's diabetes is missing from the claims file. Such continual updating, with the associated requirement of RO review of the new evidence prior to Board adjudication, pursuant to 38 C.F.R. §§ 19.37, would ultimately preclude the Board from ever adjudicating the claim. Such a consequence would necessarily deprive the Veteran of the benefit of the Board's review and adjudication. In addition, the Veteran has not submitted any statement indicating that his diabetes mellitus has increased in severity since the most recent treatments upon which the RO based its May 2009 SSOC. VA's duty to assist the Veteran by providing examinations when necessary was also adequately fulfilled. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded VA examinations for compensation purposes in the course of appeal to address his claimed diabetes and associated disabilities, in April 2006 and November 2008. The November 2008 VA examiner further reviewed the claims file in February 2009, and found no basis for changing his prior findings or opinion. The examinations were appropriately followed by review of the claim by the RO, including most recently with issuance of the May 2009 SSOC. The examinations, taken together with records of VA, private, and service treatment, and statements and testimony by the Veteran and his spouse, as well as other evidence of record, are adequate for the Board's adjudication herein. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA examinations, taken as a whole, addressed both the medical findings upon current examination and the Veteran's history, and presented findings and conclusions consistent with his medical history and sufficiently addressing the criteria for rating the disorder in question to allow the Board to adjudicate the claim based on informed medical findings and medical judgment. While it is true that the VA examiners did not address all potential parameters of peripheral vascular disease of the lower extremities as associated with the Veteran's diabetes mellitus, it is also true that the Veteran at the VA examinations denied significant symptoms of peripheral vascular disease, including in particular denying impairment of activities associated with the lower extremities. Hence, there is no indication in the record that the Veteran's peripheral vascular disease of the lower extremities associated with the Veteran's diabetes mellitus result in additional compensable disability or otherwise warrant further medical evaluation. The Board accordingly concludes that additional medical evaluation on that basis would amount to no more than a fishing expedition. Hence, further examination would constitute an unreasonable delay and expenditure of scarce VA resources. See 38 C.F.R. § 3.303; Counts v. Brown, 6 Vet. App. 473, 478- 9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (VA's statutory duty to assist is not a license for a "fishing expedition"). No further statement has been received by the Veteran indicating the existence of additional pertinent evidence not requested. The case presents no reasonable possibility that additional evidentiary requests would further the appealed claim. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, supra. In short, in this case, with regard to the increased rating claim herein adjudicated, and with regard to the Board's grant herein of a separate disability rating for hypertensive vascular disease (hypertension) associated with the Veteran's diabetes mellitus, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the ratings assigned for the rating period in question, for the appealed claim. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Veteran was duly afforded the opportunity to produce additional evidence to support his claim. Thus, the Board determines that the evidentiary record is adequate, and the only significant medical question remaining pertaining to the Veteran's claim for increased rating - that of objective or corroborating evidence of greater disability - was in this case based on development already undertaken, the responsibility of the Veteran. See 38 C.F.R. § 3.303. In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claim on appeal herein adjudicated have been accomplished. II. Increased Rating - Diabetes Mellitus with Hypertension and Peripheral Vascular Disease of the Lower Extremities Disability evaluations are assigned to reflect levels of current disability due to service-connected conditions. The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When 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 is assigned. 38 C.F.R. § 4.7. In all cases, the Board attempts to determine the extent to which the Veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where disabilities overlap in their resulting physical impairment and effect on functioning, or where multiple diagnoses are assigned for the same disability, evaluation of the same (overlapping) disability under various diagnoses (and hence with multiple ratings) is to be avoided. 38 C.F.R. § 4.14. It is, however, possible for a veteran to have separate and distinct manifestations from the same disability which would permit rating under more than one diagnostic code. The critical element in such a case is that none of the symptomatology of the primary condition is duplicative or overlaps with the symptomatology of the other. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Medical evidence is generally required to establish a medical diagnosis or to address other medical questions, and lay assertions do not constitute competent evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support claims by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (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). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). The Veteran's diabetes mellitus is currently rated 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Pursuant to DC 7913, a rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the condition requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the condition requires 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 100 percent rating is warranted when the condition 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 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. The Veteran was previously rated 20 percent disabling for his diabetes mellitus, and has been assigned this rating for the entire rating interval for his diabetes mellitus with hypertension and peripheral vascular disease of the lower extremities. VA examinations for diabetes mellitus for compensation purposes in April 2006 and November 2008 did not result in a finding of a need for restricted activity due to his diabetes mellitus, and treatment records over the rating period beginning up to a year prior to the December 2004 date of receipt of claim for increased rating, similarly show no medical need for restriction of activity due to diabetes mellitus. To the contrary, the Veteran is noted in both treatment and examination records to engage in significant exercise activity as part of his regimen to control his diabetes mellitus and to preserve general health. While it is true that the Veteran has been prescribed both diet restriction and insulin for control of his diabetes mellitus, these are appropriately reflected in the currently assigned 20 percent evaluation. At his November 2008 VA examination the Veteran expressly informed that he did not believe he was restricted, including in work activities, due to his diabetes mellitus. Rather, he reported that he lost his most recent job, as a delivery person, due to having "got[ten] in some trouble." Interpersonal conflicts which apparently do result in some employment impairment, are not associated with his service- connected diabetes mellitus, but rather with his service- connected posttraumatic stress disorder (PTSD). The Board notes that the Veteran has already been assigned a total disability rating based on unemployability due to service- connected disabilities (TDIU), principally on the basis of his PTSD, since 2002, and hence has been assigned that 100 percent extraschedular rating including for the entire rating period in question. The Board finds that for the entire rating period the preponderance of the evidence is against assignment of the next-higher, 40 percent rating for diabetes mellitus under Diagnostic Code 7913. As already noted, the evidence preponderates against the Veteran meeting the schedular criteria for that next higher evaluation. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). If the Veteran were to receive a separate rating for his peripheral vascular disease of either extremity associated with his diabetes mellitus, it would generally be rated under Diagnostic Code 7114 for arteriosclerosis obliterans. Under Diagnostic Code 7114, claudication on walking more than 100 yards and diminished peripheral pulses or ankle/brachial index of 0.5 or less warrant a 20 percent evaluation. Claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less warrant a 40 percent rating. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. Id. A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 C.F.R. § 4.104, Diagnostic Code 7114 (2009). Note 1 to Diagnostic Code 7114 provides that the ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. The Veteran's diabetes examination for compensation purposes in April 2006 noted that the Veteran was service connected for peripheral vascular disease as associated with his diabetes mellitus, but did not note significant symptoms of peripheral vascular disease. Rather, the Veteran was noted to be exercising a lot in an effort to lose weight, and noted symptoms of diabetes mellitus included numbness, blurred vision, and sexual dysfunction, but not disabling disability associated with peripheral vascular disease. Similarly, the Veteran's diabetes mellitus examination in November 2008 noted the Veteran's history of diabetes mellitus, but also noted that the Veteran had no history of vascular disease, and found no symptoms of peripheral vascular disease resulting in limitation of functioning. At that examination the Veteran denied any weakness or functional loss associated with his lower extremities. Treatment records over the rating period also fail to show complaints or findings of exercise limitation or claudication in the lower extremities with exercise. Accordingly, with the preponderance of the evidence against the Veteran having symptoms of peripheral vascular disease warranting a separate 10 percent evaluation for any interval over the rating period, a separate rating on that basis is not warranted over any interval. The Veteran has also been separately rated for his erectile dysfunction as due to Agent Orange exposure or diabetes mellitus, but medical records, including explicit findings upon the November 2008 diabetes examination for compensation purposes, are to the effect that the Veteran has no penile deformity. A compensable rating is not available for erectile dysfunction in the absence of penile deformity. 38 C.F.R. § 4.115b, Diagnostic Code 7522. The Veteran has been granted special monthly compensation under 38 U.S.C.A. § 115(k) (West 2002 & Supp. 2009); 38 C.F.R. § 3.350(a), for this erectile dysfunction as a loss of procreative power. In any event, it does not appear that the RO has considered this erectile dysfunction due to Agent Orange exposure ro diabetes mellitus as part of the disability associated with his diabetes mellitus the subject of the current appeal. Hence, the Board is without jurisdiction to consider an increased evaluation for erectile dysfunction. Rowell v. Principi, 4 Vet. App. 9 (1993). Similarly, the Veteran has been service-connected for peripheral neuropathy of the left and right lower extremities as due to Agent Orange exposure or diabetes mellitus, with a separate 10 percent evaluation assigned for each lower extremity for this disability, under 38 C.F.R. § 4.124a, Diagnostic Code 8620 (2009). However, it does not appear that these peripheral neuropathy ratings are the subject of the present appeal, and hence are not for review by the Board herein. Rowell. The Veteran's hypertension is rated under Diagnostic Code 7101, which pertains to hypertensive vascular disease (hypertension and isolated systolic hypertension). Diagnostic Code 7101 provides for a 10 percent rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating may be assigned with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Diastolic pressure of 120 or more is rated as 40 percent disabling, and a maximum 60 percent rating is warranted for diastolic pressure of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). Since up to a year prior to the December 2004 date of receipt of the Veteran's claim for increased rating for his diabetes mellitus with hypertension and peripheral vascular disease of the lower extremities, the Veteran's hypertension has been controlled with medication, and has not been shown to have been manifested by diastolic pressure predominantly 110 or more, or by systolic pressure predominantly 200 or more. Rather, readings during outpatient treatments over the rating period have been predominantly in the 130s to 140s for systolic readings, and predominantly in the 70s for diastolic readings. Accordingly, the evidence warrants a 10 percent evaluation over the rating period based on hypertension controlled by medication, but preponderates against a still higher evaluation over the rating period or over any interval within the rating period. 38 C.F.R. §§ 3.303, 4.104, Diagnostic Code 7101. The preponderance of the evidence is against a still higher evaluation, and, therefore, the benefit of the doubt doctrine does not apply to that extent. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. For the ratings considered herein, the Board has duly weighed all relevant evidence, including submitted statements by the Veteran. However, as already noted, the weight of the evidence, inclusive of those statements, is against assignment of higher disability ratings than those assigned herein, for any interval over the rating period beginning up to a year prior to December 2004. Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER An increased rating above the 20 percent assigned for diabetes mellitus with peripheral vascular disease of the lower extremities is denied. A separate disability rating of 10 percent, but no more, is assigned for hypertension associated with diabetes mellitus, for the entire rating period, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs