Citation Nr: 1008455 Decision Date: 03/08/10 Archive Date: 03/17/10 DOCKET NO. 08-06 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to an evaluation in excess of 10 percent for headaches secondary to head trauma. 3. Entitlement to service connection for macular degeneration, claimed as legally blind/vision impairment, to include as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for type 2 diabetes mellitus with an evaluation of 10 percent effective June 2, 2006. In December 2007, the RO increased the evaluation of the Veteran's service-connected type 2 diabetes mellitus to 20 percent disabling effective June 2, 2006. In April 2008, the RO granted service connection for post- traumatic stress disorder (PTSD), and evaluated the disability as 50 percent disabling. In December 2008, the Veteran filed a notice of disagreement with the evaluation assigned, and the RO issued a statement of the case in April 2009. The Veteran did not file a substantive appeal with respect to this issue and it became final. This issue is therefore not for appellate consideration. In September 2008, the RO denied the Veteran's claims for a higher evaluation for his service-connected headaches, service connection for macular degeneration, and individual unemployability. The Veteran filed a notice of disagreement with respect to these determinations in December 2008. The RO has yet to issue a statement of the case pertaining to these claims. As the appeal regarding the evaluation of the Veteran's type 2 diabetes mellitus involves an original claim, the Board has framed the issue as shown on the title page. See Fenderson v. West, 12 Vet. App. 119 (1999). In addition, because the assigned evaluation of the Veteran's service-connected headache disability does not represent the maximum rating available for this disability, the Veteran's claim challenging the evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The claims of entitlement to an evaluation in excess of 10 percent for headaches secondary to head trauma, entitlement to service connection for macular degeneration, and entitlement to individual unemployability are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the Veteran's appeal has been obtained. 2. The competent medical evidence of record indicates that the Veteran's type 2 diabetes is manifested by use of oral medication and diet restriction, but is not shown to have required regulation of activities related to diabetes mellitus. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp 2009); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. The Veteran's claim arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. In particular, the information and evidence associated with the claims file consists of the Veteran's service records, post-service treatment records, Social Security Administration records, a VA examination, and statements submitted by the Veteran and his representative in support of the claim. Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the Veteran's claim. Therefore, under the circumstances of this case, VA has satisfied its duty to assist the Veteran and further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Law and Analysis In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The rating criteria for diabetes mellitus are found in 38 C.F.R. § 4.119, Diagnostic Code 7913. 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, is assigned a 100 percent disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. 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 separately evaluated, is assigned a 60 percent disability rating. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Id. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent evaluation. Id. In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. Id at Note (1). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7913. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 7913 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (diabetes mellitus) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7913, with reference to other diagnostic codes as appropriate as required by the diagnostic criteria set forth therein. The medical evidence in this case consists primarily of VA treatment records and a VA examination dated in September 2008. The Veteran's treatment records cumulatively indicate that the Veteran's type 2 diabetes mellitus has been treated using restricted diet and oral hypoglycemic medication, including Glipizide. These records do not indicate that the treatment of the Veteran's has included regulation of activities. The Veteran was also afforded a VA examination dated in September 2008 in connection with his claim. The examiner indicated that the Veteran's claims file had been reviewed in connection with the examination. The examiner indicated that the Veteran's diabetes mellitus had its onset in 2006. He was also noted to be taking Glipizide, an oral medication, in connection with his condition. The examiner indicated that the Veteran had episodes of hypoglycemic reactions or ketoacidosis, but that these did not require hospitalization. The Veteran was noted to see his diabetic care provider monthly or less often. The examiner found that the Veteran was not restricted in ability to perform strenuous activity. The examiner found no symptoms of diabetic related peripheral vascular disease in the lower extremities, and no cardiac symptoms, neurovascular symptoms, peripheral neuropathy, skin symptoms, or gastrointestinal symptoms related to diabetes. The Veteran was noted to have progressive loss of vision that may be related to diabetes, and the Veteran was also noted to have erectile dysfunction. In this regard, the examiner stated that the etiology of the Veteran's erectile dysfunction was not known and that the Veteran had several other medical problems. The examiner stated that the erectile dysfunction may be from Addison's disease and that it predated the Veteran's diabetes mellitus. The erectile dysfunction was noted to be not severe or long standing. The examiner also indicated no neuropathy. The Veteran was noted to be taking oral medication for erectile dysfunction. Neurologic examination was normal and Romberg's sign was negative. There was diminished touch in the left ulnar area, but cranial nerve function was normal, and Babinski sign was negative. The Veteran was noted to have extreme loss of vision (legally blind) due to macular degeneration. After examination, the Veteran was diagnosed with type 2 diabetes mellitus without complications. The Veteran was noted to have additional medical conditions, but the examiner indicated that there were no other conditions that could sometimes be complications of diabetes. The examiner specifically noted that the Veteran's macular degeneration was not a complication of his diabetes mellitus and was not worsened by the diabetes. The examiner also noted that there was no peripheral edema. With respect to erectile dysfunction as a complication of the Veteran's diabetes mellitus, the Board notes that the September 2008 VA examiner did not link this condition to the Veteran's diabetes, and indicated that this condition predated the onset of diabetes. Therefore, the issue of entitlement to special monthly compensation for loss of use of a creative organ has not been referred to the RO for separate disposition, as this condition has not been associated with the Veteran's service-connected diabetes mellitus. The Board also notes that the Rating Schedule does not provide for a separate compensable schedular rating for such symptomatology alone. See 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2008) (requiring penis deformity with loss of erectile power). In addition, the Board notes that September 2008 VA examiner has specifically found that the Veteran's macular degeneration is not related to the Veteran's service- connected type 2 diabetes mellitus, and no other complications related to diabetes mellitus were identified by the examiner or the Veteran's medical records. As has been discussed in the law and regulations section above, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require insulin, a restricted diet, and regulation of activities. These criteria are conjunctive; all three elements must be met. 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]. The evidence of record shows the Veteran requires oral medication and has been placed on a restricted diet. However, with respect to regulation of activity (defined in the schedular criteria as avoidance of strenuous occupational and recreational activities), no health care provider has suggested that any of the Veteran' activities be limited. And the September 2008 VA examiner stated that the Veteran was not restricted in ability to perform strenuous activity. The criteria for the assignment of a 40 percent disability rating are not met in this case and, therefore, the higher rating may not be awarded. The Board therefore finds that no basis exists for the assignment of a rating in excess of 20 percent for diabetes under Diagnostic Code 7913. Finally, in view of the Court's holding in Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether the Veteran is entitled to staged ratings for his diabetes. However, upon review of all the evidence of record, the Board finds that at no time since service connection was granted has the Veteran's diabetes been more or less disabling than is reflected in the evaluation assigned. In summary, for the reasons and bases expressed above, the Board concludes that an increased rating for the Veteran's service-connected diabetes mellitus is not warranted. The benefit sought on appeal is accordingly denied. This decision is based on application of pertinent provisions of the VA's Schedule for Rating Disabilities. Additionally, the record does not establish that the schedular criteria are inadequate to evaluate the disability, so as to warrant referral to the RO for consideration of an assignment of a higher evaluation on an extra-schedular basis. In this regard, the Board notes that there is no showing that the service-connected disability has resulted in marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), that there is no showing that the Veteran's disability has necessitated frequent periods of hospitalization, or that the disability has otherwise rendered impractical the application of the regular schedular standards. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Here, the Board notes that where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran does meet the numerical criteria set forth above, as he is service-connected for post- traumatic stress disorder, evaluated as 50 percent disabling, and has a total combined evaluation for his service-connected disabilities that is 70 percent disabling, with the highest individual disability being rated as 20 percent disabling. However, in a September 2008 rating decision, the RO denied the Veteran's individual unemployability claim. The Veteran filed a notice of disagreement received at the RO in December 2008. As the RO has yet to issue a statement of the case with respect to this issue it has been remanded as set forth below. Therefore, the Board finds that no further consideration of a TDIU is warranted at this time. ORDER Entitlement to an initial disability rating in excess of 20 percent for service-connected diabetes mellitus is denied. REMAND After a thorough review of the Veteran's claims file, the Board finds that the claims of entitlement to an evaluation in excess of 10 percent for headaches secondary to head trauma, entitlement to service connection for macular degeneration, and entitlement to individual unemployability, must be remanded for further development. Here, the Board notes that in September 2008, the RO denied the Veteran's claims for a higher evaluation for his service- connected headaches, service connection for macular degeneration, and individual unemployability. The Veteran filed a notice of disagreement with respect to these determinations in December 2008. The Veteran, however, has not been provided with a statement of the case with respect to these issues. Because the RO has not issued to the Veteran a statement of the case with respect to his claims for a higher evaluation for his service-connected headaches, service connection for macular degeneration, and individual unemployability, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the case is REMANDED for the following action: 1. The RO should furnish the Veteran a statement of the case regarding his claims of entitlement to a higher evaluation for his service-connected headaches, service connection for macular degeneration, and individual unemployability, to include notification of the need, and the appropriate time period, in which to file a substantive appeal to perfect an issue, in accordance with 38 C.F.R. § 19.30. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs