Citation Nr: 1007176 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased evaluation for diabetes mellitus, type 2, currently evaluated as 20 percent disabling, to include whether a separate compensable evaluation is warranted for the Veteran's left eye diabetic retinopathy and/or bilateral cataracts. 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability prior to November 2, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Macierowski, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to November 1971, with additional Reserve and National Guard service through June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). In the July 2008 rating decision, a 40 percent evaluation was assigned for the Veteran's neurogenic bladder disorder, effective June 18, 2008. In the January 2010 informal hearing presentation, the Veteran's representative asserted that the effective date assigned for that increased evaluation should be prior to June 18, 2008. Because the one-year appeal period in which the Veteran had to disagree with the effective date of that increased evaluation has expired, the claim for an earlier effective date is a freestanding one. 38 U.S.C.A. § 7105 (c); 38 C.F.R. § 3.104; see also Rudd v. Nicholson, 20 Vet. App. 296 (2006). Thus, as the Veteran's claim for an earlier effective date for the assignment of a 40 percent evaluation for neurogenic bladder disorder has yet to be addressed, it is referred to the RO for the appropriate development. The issue of entitlement to a total disability rating for compensation on the basis of individual unemployability (TDIU) prior to November 2, 2007 is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The Veteran's service-connected diabetes mellitus, type 2, is manifested by the prescription of oral hypoglycemic agents and injectable insulin, as well as a restricted diet, but not by medically-directed regulation of activities. 2. The probative and persuasive evidence of record reflects that the Veteran's left eye diabetic retinopathy and bilateral cataracts have been and are primarily mild in severity, and that his corrected distance vision has been no worse than 20/25 in either eye during the appeal period. CONCLUSION OF LAW The criteria for an increased evaluation in excess of 20 percent for diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009); 38 C.F.R. § 4.84a, Diagnostic Code 6026 (2008), Diagnostic Code 6026, 6027 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, all the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appeal. The Veteran must not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). In his March 2006 claim, the Veteran indicated that his diabetes mellitus, type 2, had worsened, as he was now required to use injectable insulin in addition to oral hypoglycemic agents. Moreover, in an October 2006 statement, the Veteran argued that he had developed bleeding behind the eyes, and glaucoma, as a result of his diabetes mellitus, type 2. Additionally, he noted in a February 2007 statement that the diet he was following for his obesity increased his blood sugars, and that his diabetes-related peripheral neuropathy made it difficult for him to exercise to reduce them. Increased Evaluations Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2009). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. VA is directed to review the recorded history of a disability in order to make a more accurate evaluation; however, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus, Type 2 The Veteran's diabetes mellitus, type 2, is evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913. Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if evaluated separately. Id. The maximum 100 percent evaluation is warranted when the diabetes mellitus 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. See 38 C.F.R. § 4.119. In this case, the probative and persuasive evidence of record does not support an evaluation greater than 20 percent for diabetes mellitus, type 2. The evidence reflects that the Veteran had been prescribed the oral hypoglycemic agents Glyburide and Metformin through February 2006, at which point his VA physicians determined that he required both Metformin as well as injected insulin to maintain a satisfactory blood sugar level. Such insulin was initially prescribed as a 5 unit dose, twice daily; the record reflects that the amount of each dosage was periodically increased, and was most recently, at a January 2009 VA outpatient visit, increased to a 30 unit dose, twice daily. However, the record does not reflect that the Veteran requires a regulation of activities. Indeed, at the October 2006 and February 2007 VA diabetes examinations, the VA examiners indicated that the Veteran had "no medically indicated limitation or restriction of activities" due to his diabetes. There is no other medical evidence, as required, to show such a restriction on occupational and recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). Because the criteria are conjunctive, such that restriction of activities is required for a 40 percent (or higher) evaluation, an evaluation greater than 20 percent for diabetes mellitus, type 2, is not warranted. See also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Left Eye Diabetic Neuropathy; Bilateral Cataracts Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating. The record reflects that separate evaluations have previously been assigned for the Veteran's right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, depression, bladder disorder, and erectile dysfunction (with loss of use of a creative organ). Review of the record also reveals that the Veteran has not indicated disagreement with the ratings assigned for those disorders. Thus, appellate consideration of the same is not required at this time. However, noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, at Note. Thus, a separate evaluation for the Veteran's left eye diabetic retinopathy and/or bilateral cataracts may only be assigned if their severity warrants at least the minium compensable rating. To that end, the probative and persuasive evidence of record does not support separate, compensable evaluations for either the Veteran's left eye diabetic retinopathy or his bilateral cataracts. The probative and persuasive evidence of record for the appeal period indicates that the Veteran's left eye diabetic retinopathy is no more than mild, and is nonproliferative, without clinically significant macular edema. Moreover, optic neuropathy, or nerve disease of the eye is evaluated under Diagnostic Code 6026, and directs that it be evaluated based on visual impairment; section 4.76 directs that visual acuity be based on corrected distance vision. 38 C.F.R. § 4.76 (2009). While Diagnostic Code 6026 requires a minimum of one eye having visual acuity of 20/40 or worse to warrant a compensable evaluation, the probative and persuasive evidence of record reveals that the Veteran's corrected distance visual acuity was no worse than 20/25 during the appeal period. Indeed, the Veteran's corrected distance vision was 20/20 in both eyes during a November 2004 VA outpatient visit, the October 2006 VA examination, and a November 2007 VA outpatient visit. Moreover, although the criteria for Diagnostic Code 6026 were revised effective November 10, 2008, there is no evidence dated from that date through the present relating to the Veteran's diabetic retinopathy. See 38 C.F.R. § 4.84a, Diagnostic Code 6026 (2009); see also 73 Fed. Reg. 66, 550 (November 10, 2008). Accordingly, a separate evaluation on and after November 10, 2008, for the Veteran's left eye diabetic retinopathy, is not warranted. Additionally, the Board acknowledges that the RO's characterization of the Veteran's diabetes mellitus disability reflects that the Veteran's bilateral cataract disability is part of his diabetes mellitus service-connected disability and as such, the Board will not disturb that determination. See July 2008 & December 2008 Rating Decisions. However, there is no evidence in the record that the Veteran's bilateral cataracts are related to the Veteran's diabetes mellitus, type 2. Diagnoses of bilateral cataracts were noted in December 2005 and November 2008 VA outpatient treatment records, but at no time were these noted to be caused by or the result of the Veteran's diabetes mellitus, type 2. In any event, a separate evaluation for bilateral cataracts, as a complication of the Veteran's diabetes mellitus, type 2, is not warranted. Under Diagnostic Code 6027 [cataract, traumatic] preoperative cataract is to be rated on the basis of impairment of vision, whereas postoperative cataract is to be rated on the basis of impairment of vision and aphakia. See 38 C.F.R. § 4.84a, Diagnostic Code 6027 (2008). "Aphakia" is the absence of the lens of the eye. Dorland's Illustrated Medical Dictionary 110 (27th ed. 1988). Flash v. Brown, 8 Vet. App. 332, 335 (1995). As demonstrated above, the Veteran's corrected distance visual acuity was no worse than 20/25 during the appeal period and his eye lens remain intact. Thus, the criteria for the assignment of a separate evaluation are not warranted. Other Considerations Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual claimant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the 20 percent rating for diabetes mellitus, type 2, inadequate. The Veteran's diabetes mellitus, type 2, is evaluated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, the criteria of which is found by the Board to specifically contemplate the level of impairment caused by this disability. Id. As noted above, oral hypoglycemic agents, injected insulin, and restricted diet have been required for the Veteran for the entire appeal period; however, there is no evidence that the Veteran was required by a physician to regulate his activities. Again, the criteria are conjunctive. See Melson, supra. When comparing this disability picture with the Schedule, the Board finds that the Veteran's disability picture is represented by a 20 percent disability rating for his diabetes mellitus, type 2. A compensable rating is provided for certain manifestations of diabetes mellitus, type 2, but the medical evidence demonstrates that those manifestations are not present in this case. Accordingly, the noncompensable schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also VAOPGCPREC 6- 96; 61 Fed. Reg. 66749 (1996). As the threshold determination for a referral for extraschedular consideration is not met, the Board finds that this issue is not entitled to referral for an extraschedular rating. Thun, 22 Vet. App. at 115. Because the Veteran's diabetes mellitus, type 2, has not required medically-directed regulation of activities, and the Veteran's left eye diabetic retinopathy and bilateral cataracts do not manifest to the severity required for a compensable evaluation, the preponderance of the evidence is against the Veteran's claim for an increased evaluation for diabetes mellitus, type 2. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). VA's Duties to Notify and to Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Letters dated in September 2006 and January 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and of the disability rating in a February 2009 letter as well as the September 2006 and January 2007 letters noted above. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration (SSA); therefore, the RO's failure to request and obtain any relevant SSA records was not in error. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in October 2006 and February 2007; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. ____ (2009); 129 S. Ct. 1696, 2009 WL 1045952, U.S., April 21, 2009 (No. 07-1209). ORDER An increased evaluation for diabetes mellitus, type 2, is denied. REMAND An appeal to the Board consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200. A notice of disagreement must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; and (5) be filed by the claimant or the claimant's authorized representative. While special wording is not required, a notice of disagreement must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201, § 20.300; see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The Veteran filed a claim for TDIU in August 2006. A notification letter concerning VA's duties to assist was sent to him in January 2007; this letter requested that the Veteran sign and complete the enclosed VA Form 21-8940, a formal claim for TDIU. The RO denied his claim in the May 2007 rating decision. The Veteran eventually filed the VA Form 21-8940 in October 2007. In a statement accompanying that submission, the Veteran indicated his disagreement with the May 2007 rating decision denying his claim for TDIU. The filing of a notice of disagreement initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). It is noted that by rating decision dated in July 2008 the RO granted a total combined rating to 100 percent, effective June 18, 2008, and by rating decision in December 2008, the assigned effective date was from November 2, 2007. In the Informal Hearing Presentation, the Veteran's representative maintained that an effective date prior to November 2, 2007 was warranted. To that end and because review of the claims file reveals that VA has not yet issued a statement of the case as to the issue of entitlement to TDIU, prior to November 2, 2007, a remand is required. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the issue of entitlement to TDIU is remanded for the following action: Appropriate action, including the issuance of a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to TDIU prior to November 2, 2007 is necessary. 38 C.F.R. § 19.26 (2009). The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the May 2007 rating decision denying this claim must be filed. 38 C.F.R. § 20.202 (2009). If the Veteran perfects an appeal as to this issue, the case should be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs