Citation Nr: 1007413 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-10 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement an increased rating for diabetes mellitus type II, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In that decision, the RO denied the Veteran's claim for an increased rating for his diabetes. FINDING OF FACT The Veteran's diabetes has required insulin and at times a restricted diet, but not regulation of his activities. CONCLUSION OF LAW The criteria for a rating higher than 20 percent for diabetes mellitus type II have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a September 2005 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for diabetes. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the September 2005 letter complied with this requirement. The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in a December 2008 letter. This letter also contained the language of the diagnostic code (DC) applicable to diabetes (DC 7913, discussed below), and additional language in compliance with a since vacated Court decision. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in a September 2009 supplemental statement of the case (SSOC). Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records. In addition, the Veteran was afforded an October 2005 VA examination and a February 2009 VA-authorized examination. These examinations were adequate because they addressed the symptoms listed in the applicable criteria as discussed below. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for diabetes is thus ready to be considered on the merits. Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, the uniform 20 percent rating is proper and a higher rating is not warranted for any time during the appeal period. The Veteran is receiving a 20 percent rating for his diabetes under 38 C.F.R. § 4.119, DC 7913. Pursuant to DC 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent 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. A 100 percent rating is warranted 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. While the Veteran has complications associated with diabetes, including peripheral neuropathy of each lower extremity for which he has been granted service connection and is receiving separate ratings, as well as erectile dysfunction for which he has been granted special monthly compensation, the issue on this appeal concerns only his rating for diabetes under DC 7913. The definition of "regulation of activities" in the criteria for a 100 percent rating, i.e., "the avoidance of strenuous occupational and recreational activities," applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In addition, a 40 percent rating under DC 7913 requires medical evidence that occupational and recreational activities have been restricted. Camacho, 21 Vet. App. at 363-364. The Veteran's claim for an increased rating for his diabetes must be denied because neither his contentions nor the evidence reflects that there has been regulation of activities as defined in DC 7913. The Veteran's statement accompanying his April 2007 substantive appeal (VA Form 9) and his representative's October 2009 statement (VA Form 646), argued that a higher rating was warranted because the Veteran was taking insulin and his doctors had to change the dosage and frequency in order to control his blood sugars, thus indicating the worsening of his diabetes. In his August 2006 notice of disagreement, the Veteran indicated that he took insulin two times per day as well as other medications, and that he had a special diet due to his diabetes. He also noted that he had to cut his toenails frequently, that he wore diabetic shoes, socks, insoles, and that he walked with a cane. However, none of these allegations indicates that there has been avoidance of strenuous occupational and recreational activities warranting a 40 percent rating under DC 7913. Moreover, such avoidance of strenuous occupational and recreational activities is not shown by the evidence. The October 2005 VA examiner noted that the Veteran had been placed on insulin within the previous six months, and that this had achieved much improved sugar control. The examiner did not indicate that there was a restricted diet or regulation of activities; rather, he described the Veteran in his concluding comment as an overweight, hypertensive diabetic now on insulin with improved control. An April 2007 VA examination as to whether there were cardiac-related complications of diabetes indicated that the Veteran was not on a particular diet and that he did not have limitations or restrictions due to his diabetes. A May 2007 VA treatment note indicated that, with regard to his diabetes, the Veteran was on insulin and pills, and that his insulin would be adjusted. A May 2008 VA treatment record indicated that there was improved control of the Veteran's diabetes and that his insulin would be increased. The February 2009 VA-authorized examiner noted that the Veteran was taking only insulin at that time. He also noted that the Veteran followed a restricted diet and saw his diabetic care provider very two to three months. The examiner also noted that the Veteran brought a cane with him to the examination. In the discussion section, the examiner noted that the Veteran was on high dose insulin therapy with blood sugar readings under okay control, although a recent hemoglobin reading was 7.7 percent. As the above reflects that there is no medical evidence that occupational and recreational activities have been restricted due to the Veteran's diabetes, an essential criterion for a 40 percent for this disability - regulation of activities - has not been met. Moreover, there is no evidence of the ketoacidosis or hypoglycemic reactions required for the higher 60 and 100 percent ratings. The October 2005 VA examiner indicated that no history of diabetic ketoacidosis and the February 2009 VA-authorized examiner indicated that there were no particular episodes of hypoglycemia. The Veteran is therefore not entitled to a schedular rating higher than 20 percent at any time during the appeal period. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. 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 rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. While the Veteran has claimed that frequent adjustment of his insulin dose reflect that his diabetes is worse than that indicated by the 20 percent rating, the fact that his diabetes requires insulin is contemplated by the applicable rating criteria. Although frequency of change in insulin dose is not a criterion for a higher rating, the Board finds that the disability picture due to the Veteran's diabetes is fully contemplated in the applicable rating criteria, which include whether the Veteran is taking insulin as well as the many other symptoms discussed above. Moreover, there is no allegation or indication of marked interference with employment, frequent hospitalization, or any other symptoms that have rendered impractical the application of the regular schedular standards. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. For the foregoing reasons, the Board finds that the claim for an increased rating for diabetes must be denied. In reaching this conclusion, the Board has considered the benefit-of-the- doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement an increased rating for diabetes mellitus type II, currently rated 20 percent disabling, is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs