Citation Nr: 1007395 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-11 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation greater than 20 percent for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension, to include as due to inservice herbicide exposure or service- connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The issue of entitlement to service connection for hypertension 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. FINDING OF FACT Since the initial grant of service connection, the Veteran's diabetes mellitus, type II, has required insulin and restricted diet, without any required regulation of activities. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim for entitlement to an initial evaluation greater than 20 percent for diabetes mellitus, type II, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the Veteran's claim, a June 2005 letter 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). Although notice was not provided to the Veteran prior to the initial adjudication of his claim informing him that a disability rating and an effective date would be assigned should the claim of service connection be granted, the Veteran has not been prejudiced. "In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled." Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. - (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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 was also accorded a VA examination in September 2005. 38 C.F.R. § 3.159(c)(4). The Veteran has not indicated that he found this examination to be inadequate with regard to the severity of his diabetes mellitus, type II. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, the Board finds that the September 2005 VA examination obtained in this case is more than adequate, and it provides sufficient detail to determine the severity of the Veteran's diabetes mellitus, type II. Finally, 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, 18 Vet. App. 112. 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran contends that he is entitled to an initial evaluation greater than 20 percent for his service-connected diabetes mellitus, type II. In various statements, the Veteran has alleged that he takes insulin for his diabetes mellitus, that he is on a restricted diet for his diabetes mellitus, and that his activities are restricted as a result of his diabetes mellitus. Specifically, he noted physical restrictions including difficulty walking for long periods due to sore feet, difficulty walking on uneven ground, and difficulty standing for any length of time due to sore ankles and calves. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2009). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). Pertinent regulations do not require that all cases show all findings specified by the Rating 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); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, this rule does not apply here, as the current appeal is based on the assignment of an initial rating for the disability at issue, following an initial award of service connection for bilateral hearing loss. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Instead, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Id. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. In April 2005, the Veteran filed his claim seeking entitlement to service connection for diabetes mellitus, type II. In October 2005, the RO issued a rating decision granting service connection for diabetes mellitus, type II, and awarded a 20 percent evaluation, effective April 30, 2005. In November 2005, the Veteran filed a notice of disagreement with respect to the rating assigned by the October 2005 rating decision. In February 2006, the Veteran perfected his appeal. Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet, warrants a 20 percent disability rating. Diabetes mellitus is rated as 40 percent disabling when it requires insulin, restricted diet, and regulation of activities. A 60 percent rating 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. A 100 percent rating is warranted for diabetes mellitus 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. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). A note to Diagnostic Code 7913 provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a total evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. Private medical treatment records from October 1996 through April 2005 reveal diagnoses of and treatment for diabetes beginning in April 2002. An April 2002 treatment record notes that the Veteran would be started on Glucovance. Another April 2002 treatment record reveals that the Veteran was instructed on a diabetic low cholesterol diet, and that the Veteran said he did not want to start taking medication, but wanted to try treatment with diet first. A May 2002 treatment note indicates that the Veteran needed medication for sugar, and was prescribed Glucovance. Another May 2002 treatment record notes that the Veteran's "sugars, although infrequently checked, [were] also admittedly elevated." The treatment record also reflects that the Veteran's blood sugar was 240 in April. The diagnosis was diabetes, and the Veteran's prescription for Glucovance was increased. A December 2002 treatment record notes that the Veteran had diabetes. The diagnosis was diabetes. VA treatment records from May 2005 through September 2005 reveal diagnoses of and treatment for diabetes mellitus, type II. In May 2005, the Veteran began treatment in the VA medical system. A May 2005 treatment record notes his complaints of diabetes with home glucose readings of 200 to 300. The Veteran reported prescriptions for medications including Glyburide and Metformin. The diagnosis was diabetes mellitus, type II. In June 2005, the Veteran was provided with a glucometer and instructed on proper usage. A June 2005 treatment note reveals that the Veteran reported home glucose readings of 220 to 260 in the morning with one reading of 308. The diagnosis was diabetes mellitus, poor control. The Veteran's dosage of Glyburide was increased. In September 2005, the Veteran reported that his diabetes medications were not working as well as the medications that he was on prior to obtaining treatment from VA. He noted home glucose levels in the 200's. The diagnosis was diabetes mellitus, type II, slight improvement. The treatment record reflects that the dosage of the Veteran's Metformin was increased, and the Veteran was advised on eating a low fat, low calorie diet, to increase intake of fruit and vegetables, and to exercise to achieve weight loss. The Veteran noted that he had been eating late meals due to farming. In September 2005, the Veteran underwent a VA examination. The report notes that the Veteran was initially diagnosed with diabetes mellitus, type II in 2002, and that he was then on a low carbohydrate, low sugar diet. He denied any restrictions in activities by a physician in order to avoid hypoglycemic reactions. The report further indicates that the Veteran was treated with Glyburide and Metformin, and that he denied any side effects from the medication. He reported follow-up care for his diabetes every three months. Physical examination revealed the Veteran to be five feet eight inches tall and weigh 218 pounds. Blood pressure readings were 140/90, 130/86, and 138/90. Heart rate was 80, and respiratory rate was 20. Cardiovascular examination revealed regular S1-S2 with no murmurs, gallops, or rubs. Lungs were clear to auscultation bilaterally. The abdomen was soft, obese, nontender, and nondistended. Bowel sounds were positive. Examination of the bilateral upper extremities revealed the skin of the hands to be warm, dry, and intact. Radial and ulnar pulses were adequate. There was decreased sensation to pinprick to the level of the wrist joints bilaterally. There was full range of motion of the wrists and finger joints without pain. Examination of the bilateral lower extremities revealed the skin of the feet to be warm, dry, and intact. There was adequate dorsalis pedis and posterior tibialis pulses. There was decreased sensation to pinprick in the level of the ankles, bilaterally. There was decreased range of motion of the left ankle and evidence of previous surgery. There was full range of motion in the right ankle. Deep tendon reflexes were 1+ in the biceps and tendons and absent in the patellar tendons. He had 5/5 strength in the upper and lower extremities, bilaterally. The diagnoses were type II diabetes mellitus, poorly controlled with an HgA1c of 10.1 percent, and mild peripheral neuropathy of the bilateral upper and lower extremities, "at least as likely as not" secondary to diabetes. A VA treatment record from January 2006 notes continued follow-up treatment for diabetes. The treatment record reflects that the Veteran was eating a lower carbohydrate and no sugar diet as best as he could, but that he was still having fasting glucose levels in the high 100's and low 200's. The report reflects that the Veteran was at the maximum doses for his oral medications and that he gained about four pounds since his last visit. The diagnosis was "diabetes, needs insulin." The treatment record shows that the Veteran was started on 10 units of NHP insulin and advised to stop the evening dose of Metformin but to continue Glyburide and Rosiglitazone. The treatment record also reflects that the Veteran was advised to eat a low fat, low calorie diet, to increase his intake of fruits and vegetables, and to exercise to achieve weight loss and lower glucose levels. The Board has reviewed the evidence of record and finds that the current evaluation of 20 percent under Diagnostic Code 7913 accurately reflects the severity of the Veteran's diabetes mellitus, and that a higher rating is not warranted. In order to be entitled to the next higher evaluation of 40 percent under Diagnostic Code 7913, the evidence must show that the Veteran's diabetes mellitus requires insulin, a restricted diet, and regulation of activity. These criteria are conjunctive, meaning all three elements must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that the 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) (noting that only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). A review of the Veteran's treatment records show that his diabetes mellitus, type II, has been treated with insulin and a restricted diet. However, the medical evidence of record does not show that the Veteran has been instructed by a physician to regulate or restrict his physical activities due to problems controlling his blood sugar. The Board acknowledges the Veteran's statements that his diabetes mellitus causes him to have difficulty walking. However, there is no medical evidence that the Veteran is required to regulate his activities as a result of his diabetes. More specifically, the Veteran's diabetes mellitus, type II, is not shown to require regulation of his activities, defined as avoidance of strenuous occupational and recreational activities. Accordingly, an initial evaluation greater than 20 percent is not warranted for the Veteran's diabetes mellitus, type II, under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Consideration has also been given to the potential application of other diagnostic codes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this respect it is noted that the medical evidence of record clearly shows that the Veteran's service-connected diabetes mellitus, type 2, has caused or aggravated peripheral neuropathy. However, service connection for peripheral neuropathy is already in effect. Thus, awarding additional evaluations under the diagnostic code corresponding to peripheral neuropathy would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2009); see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In addition, although the Veteran's claims file reflects his contentions that he has erectile disorder as a result of his diabetes mellitus, service connection has been denied for this disorder and it is not on appeal before the Board. 38 C.F.R. §§ 20.101, 20.200, 20.201, 20.202 (2009). The Veteran has also filed a claim for entitlement to service connection for hypertension, to include as due to his diabetes mellitus. As discussed more below, the Board is remanding that claim for additional development. Aside from peripheral neuropathy, erectile dysfunction, and hypertension, no other complications of diabetes mellitus, type II, have been claimed by the Veteran or are shown by the evidence of record. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. 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 the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's diabetes mellitus, type II disability picture is not so unusual or exceptional in nature as to render the rating for this disorder inadequate. The criteria by which the Veteran's diabetes mellitus, type II is evaluated specifically contemplate the level of impairment caused by that disability. Id. As demonstrated by the evidence of record, the Veteran's diabetes mellitus, type II, is manifested diabetes mellitus requiring insulin and restricted diet. A rating in excess of 20 percent is provided for certain manifestations of the Veteran's diabetes mellitus, type II, but the medical evidence of record does not demonstrate that such manifestations are present in this case. The criteria for the disability rating assigned more than reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. The evidence of record does not warrant a rating in excess of 20 percent at any time during the course of this appeal. 38 U.S.C.A. § 5110 (West 2002); see Fenderson, 12 Vet. App. at 125-26. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. REMAND With regard to the Veteran's claim for entitlement to service connection for hypertension, to include as due to inservice exposure to herbicide agents or as secondary to his service- connected diabetes mellitus, the Board concludes that the Veteran's claim must be remanded for a new VA examination addressing the etiology of his hypertension. The Veteran was provided a VA examination in September 2005. The examiner provided an opinion that the Veteran's hypertension was not related to his service-connected diabetes mellitus, type II. However, a review of the September 2005 opinion reveals that it is inadequate upon which to base an appellate decision. Specifically, while the September 2005 VA examiner diagnosed "[h]ypertension not secondary to diabetes as it predates the diagnosis of diabetes[,]" the examiner did not provide an opinion or discuss whether the Veteran's hypertension was aggravated by his diabetes mellitus. In addition, the VA examiner did not provide an opinion as to whether the Veteran's hypertension was caused or aggravated by inservice exposure to herbicide agents. In light of the above, the Board finds that the September 2005 VA examination is inadequate upon which to base an appellate decision, and a new VA examination must be provided which addresses the issues of whether the Veteran's current hypertension was caused or aggravated by his diabetes mellitus, type II, or his inservice exposure to herbicide agents. See Barr, 21 Vet. App. at 311 (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). In addition, the Veteran has provided statements indicating that, although he was not formally diagnosed with diabetes mellitus, type II until after his hypertension diagnosis, he had symptoms of diabetes mellitus for ten years prior to his diagnosis. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Thus, the VA examiner should address the Veteran's contentions that symptoms of his diabetes mellitus, type II, were present but not diagnosed prior to his diagnosis of hypertension. Accordingly, the case is remanded for the following action: 1. The RO must afford the Veteran the appropriate VA examination to ascertain the etiology of his current hypertension. The claims file and a copy of this remand must be provided to, and reviewed by, the examiner. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. Following a review of the entire claims file, including the service and post-service medical records and the Veteran's statements that he had symptoms of diabetes mellitus, type II, before the diagnosis of hypertension was made, the examiner must state whether any diagnosed hypertension was caused or aggravated by the Veteran's service- connected diabetes mellitus, type II. The examiner must also provide an opinion as to whether the Veteran's hypertension is related to his active duty service, to include as due to exposure to herbicide agents. The examiner must provide a complete rationale for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, he or she must so state, and provide the reasons why an opinion would require speculation. The report prepared must be typed. 2. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim must be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then 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). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs