Citation Nr: 1007194 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-13 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating for type II diabetes mellitus (diabetes), currently rated as 20 percent disabling. 2. Entitlement to an increased initial rating for peripheral neuropathy of the left lower extremity, currently rated as 10 percent disabling. 3. Entitlement to an increased initial rating for peripheral neuropathy of the right lower extremity, currently rated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Evan Deichert, Associate Counsel INTRODUCTION The Veteran had active service from April 1969 to February 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2007 decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). The veteran appeared and testified at a formal hearing held before a Decision Review Officer at the San Juan RO in March 2009. A transcript of the hearing has been associated with the claims folder. FINDINGS OF FACT 1. The Veteran's diabetes mellitus is controlled through diet and oral medication, but does not require insulin, a restricted diet, and the restriction of activities. 2. The Veteran's peripheral neuropathy of the left lower extremity is productive of mild, but not moderate, paralysis of the foot. 3. The Veteran's peripheral neuropathy of the right lower extremity is productive of mild, but not moderate, paralysis of the foot. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.119, Diagnostic Code (DC) 7913 (2009). 2. The criteria for an initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the left leg have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.124a, DC 8599-8520 (2009). 3. The criteria for an initial disability rating greater than 10 percent for service-connected peripheral neuropathy of the right leg have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.124a, DC 8599-8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating for Diabetes Disability ratings are determined by applying a schedule of ratings 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. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to 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. A brief review of the history of this issue is instructive. In this case, the Board reviewed the Veteran's compensation and pension examinations of May 2007 and March 2009, as well as the rest of his claims file. The Veteran was originally service connected for this disability in March 2005. Following a March 2007 claim for a total disability rating based on individual unemployability (TDIU), the RO continued the Veteran's 20 percent rating in a May 2007 rating decision, but separately service connected peripheral neuropathy of the left and right lower extremities, effective from June 2005. The Veteran did not pursue an appeal of the decision regarding TDIU, but instead, pursued an appeal of the ratings assigned for diabetes, and this peripheral neuropathy. Since the issue in this case is entitlement to an increased rating, the present level of the Veteran's disability is the Board's primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Type II diabetes mellitus is evaluated under 38 C.F.R § 4.119a, Diagnostic Code (DC) 7913. Under that code, the 20 percent rating assigned contemplates diabetes mellitus requiring insulin and a restricted diet, or requiring the use of an oral hypoglycemic agent and restricted diet. A higher 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for 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 separately evaluated. A 100 percent rating is warranted for requiring 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 last underwent a VA diabetes examination in March 2009. At that time, he reported that he has been instructed to follow a restricted diet, but he has not been restricted from performing strenuous activities. He reported no hypoglycemic or diabetic ketoacidosis. He denied any emergency care for his diabetes. These results are consistent with the Veteran's earlier, May 2007 VA examination. The Veteran described his diabetes and the secondary complications that have resulted. While the Veteran reported suffering from hypoglycemic reactions or ketoacidosis, none of these complications required hospitalization. He did not report being restricted in his ability to engage in strenuous activity. The Veteran testified regarding his diabetes in his March 2009 hearing. He stated that his diabetes was managed through medication, but not through insulin. He further reported that he receives treatment from VA for his diabetes, and that he has not had to seek emergency treatment for his disease. The evidence gleaned both from the VA examinations and the Veteran's hearing shows that no change to the Veteran's rating is warranted. The Veteran treats his diabetes with a restricted diet and an oral hypoglycemic agent. The Veteran has consistently denied being restricted in his activity or using insulin, both of which are required for a 40 percent rating. Further, as the Veteran's diabetes has been consistent over the appeals period, a staged rating is not appropriate. The Veteran's disability is also not so severe as to warrant an extraschedular rating. An extraschedular rating may be applied in exceptional cases involving marked interference with employment or frequent hospitalizations. 38 C.F.R. § 3.321 (2008). As outlined by the Court of Appeals for Veterans Claims (Court), the Board uses a three-step inquiry to determine whether an extraschedular rating is warranted; "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." Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the applicable rating criteria are adequate to evaluate the Veteran's disability. The Diagnostic Code includes the specific manifestations of the Veteran's diabetes, namely his insulin dependence and restricted diet. Though the Veteran is suffering from many issues secondary to his diabetes, they have been secondarily service connected and he is receiving compensation for them. The Veteran's pattern of disability is thus contemplated in the applicable rating criteria for type II diabetes mellitus. An extraschedular evaluation is thus not appropriate in this case. Again, the Veteran controls his diet through diet and an oral hypoglycemic agent, but he does not use insulin and his activities are not restricted. The Board accordingly finds that the criteria for the next higher 40 percent rating for diabetes have not been met. 38 U.S.C.A. §§ 1110, 1131, 1155; 38 C.F.R. §§ 3.321, 4.119, DC 7913. II. Increased Initial Ratings for Bilateral Peripheral Neuropathy of the Lower Extremities As previously set forth, disability ratings are determined by applying a schedule of ratings 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. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to 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. As with the evaluation of diabetes generally, to evaluate its secondary peripheral neuropathy of the lower extremities, the Board reviewed the Veteran's compensation and pension examination(s) of May 2007 and March 2009, as well as the rest of his claims file. The Veteran's peripheral neuropathy of the lower extremities has been evaluated under 38 C.F.R. § 4.124a, DC 8599-8520. When a particular disability is not listed among the diagnostic codes, a code ending in "99" is used; the first two numbers are selected from the portion of the schedule most approximating a veteran's symptoms. 38 C.F.R. § 4.27. As peripheral neuropathy of the lower extremities is not assigned a specific number, code 8599 is applied o allow for rating the disability with other diseases of the peripheral nerves. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 8599 refers to peripheral neuropathy of the lower extremities, while the more specific Diagnostic Code 8520 refers to paralysis of the sciatic nerve. Under Diagnostic Code 8520, complete paralysis of the sciatic nerve warrants an 80 percent rating. Incomplete paralysis is assigned ratings of 10 to 60 percent, depending on the severity of the claimant's symptoms. A 60 percent rating is assigned for severe paralysis with marked muscular muscle atrophy. A 40 percent rating is appropriate for moderately severe paralysis. Moderate paralysis warrants a 20 percent rating, and a 10 percent rating is assigned for mild paralysis. Here, the Veteran contends that his peripheral neuropathy of his left and right extremity is more severe than the 10 percent rating that has been assigned. As explained below, however, the Veteran's symptomatology does not rise to the level of moderate paralysis, and the assigned rating will remain unchanged. The Veteran underwent a VA peripheral nerves examination in March 2009. He reported suffering from pain, numbness, burning, and dysesthesias in both of his feet. His muscle strength, however, was measured at 5/5 for both feet, although sensory function, vibration, pain, and light touch were all decreased. No muscle atrophy was noticed, nor was there abnormal muscle tone or bulk. His gait and balance were normal. Left and right knee reflexes were recorded as 2+, as were left and right ankle reflexes. The left and right plantar reflexes were normal. A previous VA examination conducted in May 2007 reported similar findings. The Veteran was found to suffer from decreased monofilament sensation in both feet. Deep tendon reflexes were reported as 2+. A Doppler study of the Veteran's legs found them to be normal with no claudication. The Veteran was reported to be suffering from peripheral edema in both lower extremities. Other records of the Veteran's treatment for his peripheral nerve disorder largely mirror the findings of the VA examinations. A March 2006 foot examination revealed ulcers on the Veteran's feet, but the Veteran's feet pulses were normal. In an April 2008 podiatry consult, the Veteran complained of burning pain in his feet. In February 2009, the Veteran complained of pain in his feet that was unresponsive to medication. The Veteran has been noted as ambulatory throughout his treatment. The Veteran underwent a VA nerve conduction study in March 2009. The left peroneal motor nerve showed decreased conduction velocity. The left sural anti-sensory nerve showed prolonged distal peak latency and decreased conduction velocity. The study noted evidence of early mixed demyelinizating peripheral neuropathy of the lower extremities. There was, however, no evidence of active lumbar radiculopathy or myopathy. In his March 2009 hearing, the Veteran described his left leg as hurting him more than his right. He described a strong pain in both legs that prevented him from walking long distances. Based on the evidence of record, the Veteran is not entitled to a disability rating in excess of 10 percent for his lower extremity peripheral neuropathy. The Veteran has remained ambulatory throughout the appeals period. A May 2007 Doppler study found the Veteran's legs to be normal, and a March 2009 examination revealed the Veteran to have full muscle strength in his feet. While the Veteran did demonstrate decreased sensory function in his feet, his gait and posture remained normal. Additionally, no VA treatment records indicate the Veteran's lower extremity peripheral neuropathy has ever been described as moderate. As the Veteran's symptomatology has remained constant over the appeals period, staged ratings are not appropriate for these issues. As with the issue of an increased rating for diabetes, the Veteran's peripheral neuropathy is not so severe as to warrant an extraschedular rating. Once again, the applicable rating criteria are adequate to evaluate the Veteran's disability. The applicable Diagnostic Code includes gradations for levels of paralysis caused by a sciatic nerve disability, and the Veteran's symptoms match the assigned rating. An extraschedular evaluation is thus not appropriate in this case. As the Veteran's bilateral peripheral neuropathy is productive of mild, but not moderate, paralysis of the feet, the Board concludes that the criteria for an initial disability rating greater than 10 percent for service- connected bilateral peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.27, 4.124a, DC 8599-8520. III. Duties to Notify and to Assist Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2009). With respect to the duty to notify, claims for increased ratings and increased initial ratings have different thresholds that VA must meet. First, with regard to the Veteran's claim for an increased rating for diabetes, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2007 - prior to the initial RO decision in this matter - that addressed the notice elements. The Veteran filed for a TDIU, and the letter that he received was tailored to this theory of entitlement. Nevertheless, this letter informed the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. Further, the Veteran received notice of the diagnostic code under which his claim was being evaluated and the symptoms that would warrant a higher rating in the rating decision of May 2007, the January 2008 Statement of the Case, and the Supplemental Statements of the Case in June 2009 and October 2009. In addition, the RO supplied the Veteran a detailed notice letter in March 2009. The Veteran replied shortly, indicating that he received this letter, and the case was thereafter readjudicated twice. Accordingly, the Board finds any notice error to be nonprejudicial. The Veteran's claims for increased initial ratings for peripheral neuropathy of both the left and right legs originated with his claim for TDIU in March 2007. While the aforementioned April 2007 letter was tailored to the requirements of notification for a TDIU claim, it did inform the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This letter also satisfied the requirements outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006) (holding that the notice requirement of the VCAA applies to all five elements of a service connection claim). More importantly, service connection was granted for peripheral neuropathy in a May 2007 rating decision, and the Veteran is now appealing the downstream issue of the initial rating that was assigned. Therefore, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlop v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of his post-service VA treatment. The Veteran was afforded two VA compensation and pension examinations germane to his disabilities. The Veteran requested and testified in a hearing before a Decision Review Officer at the RO. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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 v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER An increased rating for type II diabetes mellitus, currently rated at 20 percent, is denied. An increased initial rating for left lower extremity peripheral neuropathy, currently rated at 10 percent, is denied. An increased initial rating for right lower extremity peripheral neuropathy, currently rated at 10 percent, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs