Citation Nr: 1004091 Decision Date: 01/27/10 Archive Date: 02/16/10 DOCKET NO. 04-40 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating higher than 20 percent for diabetes mellitus with background diabetic retinopathy prior to August 25, 2009, and higher than 60 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2007 the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This matter was previously before the Board in June 2007 when it was remanded to the RO for additional development. Although there was not complete compliance with the remand directives, the omissions do not prevent the Board from rendering a final decision on the issue of the appropriate rating for the Veteran's disability. Therefore, a remand under the provisions of Stegall v. West, 11 Vet. App. 268 (1998) is not warranted. Specifically, as noted in the June 2007 Board remand, at the February 2007 Travel Board hearing, the Veteran raised the issues of entitlement to service connection, to include as secondary to diabetes mellitus, for cardiovascular disease or hypertension, urinary dysfunction, skin disorders, "bone infection" of the feet and jaw, respiratory disorder, and "diabetic frozen joint syndrome." Additionally, the record raises the matter of service connection for peripheral neuropathy of the upper extremities. These matters are referred to the RO for appropriate action, to include issuance of proper notice relative to these claims and determinations regarding the extent of any impairments resulting from these conditions, as instructed in the June 2007 remand. Since these disabilities would be separately rated and the effective date is protected by the raised claims during the pendency of this appeal, there is no reason to delay adjudication of the issue on appeal herein. Id. An October 2009 deferred rating sheet shows that RO action is to be taken on some of these matters. FINDINGS OF FACT 1. Prior to August 25, 2009, the Veteran's diabetes mellitus with background diabetic retinopathy was characterized by the need for insulin, oral glucose, and a restricted diet, as well as noncompensable complications; medical requirement of regulation of activities and visits to a physician at least twice a month or ketoacidosis or hypoglycemic reactions requiring hospitalization are not shown. 2. From August 25, 2009, the Veteran's diabetes mellitus with background diabetic retinopathy has been characterized by the need for insulin, oral glucose, and a restricted diet, as well as regulation of activities, and visits to a physician at least twice a month, as well as noncompensable complications; ketoacidosis or hypoglycemic reactions requiring hospitalization three or more times a year or a need for weekly visits to a diabetic care provider, plus progressive loss of weight and strength are not shown. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for diabetes mellitus with background diabetic retinopathy prior to August 25, 2009 and higher than 60 percent thereafter have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The notification requirements are referred to as Type One, Type Two, and Type Three, respectively. See Shinseki v. Sanders, 556 U.S. __, 129 S. Ct. 1696 (April 21, 2009). Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 a claim for increase, the VCAA notice requirements are 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post-adjudication VCAA notice by letters dated in May 2004, March 2006, July 2007, March 2009, and August 2009. The notice included the type of evidence needed to substantiate the claims for increase, namely, evidence that the disabilities had increased in severity and the effect that worsening has on the Veteran's employment. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records. The notice included the provisions for the effective date of a claim and for the degree of disability assignable for the claim. As for content and timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent that notice preceded adjudication); of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice the claims was readjudicated, as evidenced by the supplemental statement of the case in October 2009. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained the pertinent VA and private treatment records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. The Veteran was afforded VA examinations in June 2004, October 2005, and August 2009 in relation to his increased rating claim. The Board notes that the VA examination reports contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. 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 as relevant to this appeal. Under these circumstances, no further action is necessary to assist the claimant with this appeal. Factual Background The Veteran was granted service connection for diabetes mellitus with background diabetic retinopathy with an effective date of March 2001. He filed for an increased rating for diabetes mellitus in March 2004. On November 2002 vision examination, the Veteran's uncorrected vision was 20/50 in his right eye and 20/60 in his left eye. Corrected vision was 20/20 in both eyes, with no visual field deficit. VA Medical Center records show that the Veteran received counseling on dietary restrictions, the need for regular exercise, and weight loss beginning July 2003 and recurring at regular intervals through the present time. In February 2005 the Veteran participated in kinesiotherapy four times a week for four weeks in order to maintain optimal strength and stamina, as well as lower his blood pressure and blood sugars. On June 2004 VA examination, the Veteran described onset of diabetes at 40 years of age, with resulting erectile dysfunction. He had not had any ketoacidosis or hypoglycemic reactions requiring hospitalization. He was on a restrictive diet but had no restriction on his activities. He reported tripping over obstacles, numbness in his hands and a history of diabetic retinopathy with occasional blurred vision and blotches before his eyes. He did not experience vascular or cardiac symptoms, but did have peripheral neuropathy, urinary symptoms, and erectile dysfunction. He took insulin, 50 units twice a day, and saw his diabetic care provider every four months. He reported urinary frequency day and night on an every hour basis without urinary hesitancy of dysuria or diminished stream. On physical examination, there was no cyanosis, clubbing, or atrophy of the muscles of the feet and no bladder or bowel functional impairment. The Veteran was not on dialysis. On October 2005 VA examination, the Veteran was taking both insulin (more than once a day) and oral glucose medication for his diabetes mellitus. He had not been hospitalized for his diabetes, although he had experienced episodes of ketoacidosis or hypoglycemia, and saw his diabetic care provider monthly at most. He was on a restricted diet, but was not restricted as to strenuous activities. He had cardiac symptoms of angina, shortness of breath, fatigue, cough, and weakness which were related to his diabetes, as well as occasional blurry vision. He also experienced peripheral neuropathy, loss of sensation, and pain in both feet and diabetic skin lesions. Intermittent urinary incontinence and frequent urination, as well as erectile dysfunction were also reported. The Veteran's diabetes and associated complications were noted to affect his occupation, including by increased tardiness and increased absenteeism due to vision difficulty, lack of stamina, weakness or fatigue, and pain. The examiner also noted that diabetes prevented the Veteran from exercising or engaging in sports and limited his ability to participate in recreation, to travel and to carry out his chores. A January 2007 note from his private physician, Dr. F.H., noted that the Veteran's diabetes had caused him to have neuropathy in his feet and had lead him to become more restrictive in his daily activities. At the February 2007 Travel Board hearing, the Veteran testified that he had been counseled by dietician and doctors in relation to his diabetes and his diet. He reported increasing restrictions on his daily activities and lifestyle as a result of his peripheral neuropathy, including at work where he did not always notice bleeding lacerations on his arms and hands until informed of them by others. He also stated that his blurry vision made processing information on the work computers more difficult and that taking insulin sometimes created issues for him at work. He reported other complications of diabetes including a bone infection in his jaw and his feet, diabetic frozen joint syndrome, hypertension or cardiovascular disease, a skin disorder, and a respiratory disorder. VA outpatient treatment records dated in May 2007 show that the Veteran's diabetes was in poor control, with questionable compliance by the Veteran with his diet and medications. He was advised to take his medication as prescribed in order to improve glycemic control and he needed to work on dietary restrictions. Weight changes were denied on psychiatric consultation in that month and June 2007. A June 2007 letter from a doctor at the Abilene Footcare Associates indicates that the Veteran was treated for diabetic peripheral neuropathy. This doctor recommended that the Veteran consider early retirement before he or a co- worker was injured or maimed. Treatment records from the Veteran's private physician between November 2006 and May 2008 note gradual worsening of his diabetes mellitus and fluctuations in his blood sugar levels which occasionally made him lightheaded, as well as erectile dysfunction and increases in his insulin dosage in an effort to control his symptoms. In June 2007, his diabetes was described as borderline. In October 2007 and December 2007, the relevant assessment was diabetes mellitus, insulin dependent, uncontrolled. In April 2007 (the diabetes was described as mild), May 2007, July 2007, September 2007 and February 2008, the pertinent assessment was diabetes mellitus without mention of complication, not stated as uncontrolled. VA outpatient treatment records dated in October 2008, June 2009 and July 2009 indicate no weight changes. In July 2009, the Veteran was educated on weight, exercise and nutrition programs and the positive benefits by following such. In late July 2009, the Veteran's diabetes showed some improvement but was still not considered to be under good control. Medication instructions were provided. On August 2009 VA examination, the Veteran reported experiencing some hypoglycemic episodes as well as some episodes of ketoacidosis, as often as two or three times a month, which had not required hospitalization. He was always tired in the mornings, had a loss of feeling in his feet bilaterally, a loss of smell and taste, and some episodes of tingling in his legs. He was taking both insulin (more than once a day) and oral medication to control his diabetes. He was on a restricted diet and was restricted in his ability to perform strenuous activities. He experienced complications such as hypertension, peripheral vascular symptoms, progressive loss of vision and double vision, peripheral neuropathy, genitourinary symptoms, and erectile dysfunction. The examiner noted that the Veteran's diabetes was not well controlled and he was spilling sugar in his urine and had poor reports in his prealbumin. On physical examination no motor or sensory loss was shown and his visual acuity was normal and his field of vision grossly normal. The examiner noted that diabetes and resulting complications had a significant effect on the Veteran's occupation including decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, weakness or fatigue, and pain. These symptoms prevent him from engaging in sports or recreation and made shopping, exercise, and travel difficult. VA outpatient treatment records dated in October 2009 show that the Veteran was educated on weight, exercise, and nutrition, including its resulting benefits to him. Principles of Evaluative Rating 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. 38 U.S.C.A. § 1155. 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, 510 (2007). Here, the RO has assigned staged ratings for the Veteran's diabetes mellitus; both stages will be addressed in turn. The Veteran's service-connected diabetes mellitus has been rated pursuant to Diagnostic Code 7913. Under this Diagnostic Code, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes 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; and a 100 percent rating when the diabetes 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Analysis The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the appellant/Veteran. Prior to August 25, 2009 Prior to the VA examination of August 25, 2009, the Veteran's diabetes mellitus required daily insulin injections as well as oral glucose medication and a restricted diet. However, the record contains no evidence that any regulation of the Veteran's activities was required. While the Veteran and his private physician both noted that he had chosen to restrict his activities because of his symptoms, there is no indication that this was due to medical necessity, as opposed to the Veteran's preference. In fact, there are multiple references throughout the Veteran's treatment records that show he was encouraged to engage in regular exercise (e.g., see VA outpatient treatment report dated in October 2003). The June 2004 VA examiner specifically indicated that the Veteran had no restriction on his activities. Similarly, the VA examiner in October 2005 stated that there were no restrictions as to strenuous activities. A later January 2007 report of the Veteran's private physician stated that the Veteran was more restrictive in his activities, but the doctor was referring to the cause which is a different disorder than the one at issue. In addition, while the Veteran had experienced episodes of ketoacidosis and hypoglycemia, he had not been hospitalized as a result of these symptoms, and he saw his diabetic care provider at most once a month. Based on the evidence presented, the Board finds that for the period prior to August 25, 2009, the Veteran has been properly rated for his diabetes mellitus and there is no basis for an evaluation in excess of 20 percent disabling. In this regard, the Board notes that to warrant a higher evaluation the evidence must show diabetes mellitus type II requiring insulin, a restricted diet and regulation of activities. To warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive, i.e., there must be insulin dependence and restricted diet and regulation of activities. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). Here, at most, the evidence shows that the Veteran's diabetes mellitus requires insulin and a restricted diet. Although the Veteran has been encouraged to exercise, the record is devoid of any showing of regulation of activities. As such, prior to August 25, 2009, he meets only the criteria for a 20 percent rating under 38 C.F.R. § 4.119, Diagnostic Code 7913. In the absence of evidence that the Veteran's diabetes required insulin, a restricted diet, and regulation of activities, there is no basis for an evaluation in excess of 20 percent. After August 25, 2009 On VA examination of August 25, 2009, the Veteran's diabetes mellitus was noted to require daily insulin injections, oral glucose medication, restricted diet, restricted activities, and visits to his diabetic care provider twice a month. In addition, episodes of ketoacidosis and hypoglycemia were noted to occur two or three times a month, although they had not resulted in hospitalization. Based on this evidence, the Board finds that the 60 percent disability rating effective August 25, 2009 awarded is appropriate. A higher rating (100 percent) is not warranted as episodes of ketoacidosis and hypoglycemia resulting in three or more hospitalizations a year and/or weekly visits to a diabetic care provider, or progressive loss of weight or strength have not been shown. Rather, there is no record of hospitalizations being required for diabetes. Additionally, VA outpatient treatment reports repeatedly show no weight loss. Finally, weekly visits to a diabetic care provider are not shown. As such, a schedular increased rating to 100 percent is not warranted. Complications of Diabetes The Board notes that the records shows erectile dysfunction, diabetic neuropathy, and diabetic retinopathy associated with diabetes. Separate ratings of 10 percent for peripheral neuropathy associated with diabetes mellitus in each leg have been assigned, and are not at issue here. The Veteran has also been awarded special monthly compensation for loss of use of a creative organ, secondary to diabetes mellitus, and that is also not at issue here. As noted above, the claimed complications of hypertension, urinary dysfunction, skin disorders, bone infection, a respiratory disorder, and "diabetic frozen joint syndrome" are referred to the RO for appropriate action and, if indicated, separate adjudication. In this situation, the additionally claimed disorders, if granted service connection at a noncompensable rate, would not affect the rating herein. If granted a compensable rate, such disorders would be rated separately, with an effective date that is preserved during the pendency of this appeal. As regarding the Veteran's already service-connected diabetic retinopathy, it is noted that the diagnostic criteria pertinent to diseases of the eye (38 C.F.R. § 4.84a, Diagnostic Codes 6000 through 6035) do not specifically set forth rating criteria pertinent to retinopathy. The severity of retinopathy can be ascertained, however, as analogous to impairment of central visual acuity (Diagnostic Codes 6061 through 6079). Under these rating criteria, a compensable disability rating can be assigned when corrected vision in one eye is no better than 20/50, and corrected vision in the other eye is no better than 20/40 (Diagnostic Code 6079). When corrected vision in each eye is no better than 20/40, compensation is not appropriate (Diagnostic Code 6079). The best distant vision obtainable after best correction by glasses is used as the basis of the rating for visual acuity. 38 C.F.R. § 4.75 The November 2002 vision examination showed corrected vision of 20/20 in both eyes, with no visual field deficit. The record contains no evidence that his vision has worsened and the August 2009 VA examination noted that the Veteran's visual acuity was normal and his field of vision was grossly normal. Thus, a separate compensable rating for diabetic retinopathy is not warranted, and it is addressed only as a complication of the diabetes mellitus. Extraschedular Rating Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for higher ratings for more severe symptoms. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Finally, the United States Court of Appeals for Veterans Claims (Court) recently held that a request for a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. In this case, a TDIU was denied in a May 2006 rating decision. The Veteran did not appeal that determination. Therefore, the Board finds that this appeal does not include an issue of entitlement to TDIU. In light of the foregoing, the preponderance of the evidence is against the Veteran's claim for increase for either time period encompassed by the appeal and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A rating higher than 20 percent for diabetes mellitus prior to August 25, 2009 and higher than 60 percent thereafter is denied. ____________________________________________ M. Sabulsky Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs