Citation Nr: 1013471 Decision Date: 04/08/10 Archive Date: 04/29/10 DOCKET NO. 05-05 201 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 20 percent for the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to September 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2004 decision of the RO. The Board remanded the claim in August 2007 for additional evidentiary development. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 2. The service-connected diabetes mellitus is shown to be manifested by the need for insulin and restricted diet, but restriction of activities such as avoidance of strenuous occupational or recreational activities is not demonstrated. CONCLUSION OF LAW The criteria for the assignment of a 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. §§ 3.159, 4.1, 4.7, 4.14, 4.119 including Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION A review of the record reveals that all appropriate notice and development has been accomplished. See 38 U.S.C.A. § 5100 et seq. (West 2002 & Supp. 2009). Notice as to what evidence is needed, as well as the type of evidence necessary to establish a disability rating and effective date for that disability, has been provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Pursuant to the Board's remand instructions, the January 2008, June 2009, July 2009 and September 2009 letters provided pertinent notice and development information. The Veteran was specifically advised in the January 2008 letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service- connected disabilities. Although the notices were not sent until after the initial rating denying the claim, the Board finds that any defect with respect to the timing of the required notice was harmless in that his claim was fully developed and readjudicated after notice was provided. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Moreover, the Veteran has not alleged any prejudice in terms of VCAA notification. Shinseki v. Sanders, 129 S.Ct. 1696, 1705 (2009). With respect to the VA's duty to assist, all evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder. Further, the Veteran was afforded VA diabetes mellitus examination in September 2009. The Veteran does not contend, and the file does not show, that the examination was inadequate for rating purposes, or that his symptoms have become worse since his most recent examination. Rather, the VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's prior medical history, his assertions and current complaints, and because it describes the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (internal quotations omitted). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2009). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In reaching its conclusion, the Court observed that when a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that time frame. See 38 U.S.C.A. § 5110 (West 2002). Accordingly, the relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In this case, there was no actual claim filed for an increased rating. Instead, the Veteran's already service-connected diabetes mellitus was re-evaluated in light of the orders of a United States district court in the class action Nehmer v. United States Veterans Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989), in which VA was required to re-adjudicate type-2 diabetes claims filed or denied between September 25, 1985, and May 8, 2001. Accordingly, the Board will consider evidence concerning the state of the Veteran's disability one year before the claim was readjudicated, or June 25, 2003. The analysis that follows is undertaken with the understanding that different ratings may be assigned for different time periods in this appeal. Under the applicable code, a 20 percent evaluation is assigned where the diabetes requires insulin and a restricted diet; or oral hypoglycemic agents and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring 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 separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board will initially review the evidence to determine whether any additional separate disability ratings may be assigned. Service connection has been granted for cataracts with mild diabetic retinopathy; accordingly, any eye symptomatology associated with the Veteran's diabetes need not be considered. The Veteran also evidences hypertension. However, there is no evidence of record that the Veteran's hypertension is in any way related to the service-connected diabetes mellitus, and the Veteran does not so contend. There appear to be no other complications of diabetes identified in the medical reports, and the Veteran has pointed to none. Diabetic foot examinations in the VA outpatient records were within normal limits. Additionally, during the September 2009 VA examination, the Veteran specifically denied any cardiac or renal complications, numbness and tingling in his hands or feet, or sores or wounds that would not heal, and there are no indications of any such complications in the record. In short, separate disability ratings, other than that which has already been awarded for cataracts with mild diabetic retinopathy, may not be assigned under 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board must now ascertain whether a disability rating greater than 20 percent can be awarded for the Veteran's diabetes mellitus by applying the schedular criteria. A VA examination was conducted in September 2009, specifically for the purpose of determining the nature and severity of the service-connected diabetes mellitus. The VA outpatient records show that the Veteran is on a restricted diet, and has used insulin during this period to treat his diabetic mellitus. While the evidence demonstrates that the Veteran's diabetes mellitus requires a restricted diet and insulin, it does not show that he requires any regulation of his activities or has episodes of ketoacidosis or hypoglycemic reactions. Regulation of activities means "avoidance of strenuous occupational and recreational activities." There is no evidence in the VA clinical records or examination reports, that any physician recommended avoidance of strenuous occupational and recreational activities. To the contrary, VA outpatient records dated in January 2002, July 2002, August 2002, September 2002, February 2003 and February 2005 specifically indicate that the Veteran did not require any restriction in physical activities. Though the Veteran indicated during the September 2009 VA examination that he could not complete any yard work due to his diabetes, the examiner made no finding after physical examination of the Veteran that restriction of activities was required. Furthermore, there is no evidence indicating that the Veteran requires avoidance of strenuous occupational activities due to his diabetes mellitus. To the contrary the Veteran reported during the September 2009 VA examination that he was not unemployed secondary to his diabetes, but rather a psychiatric condition. Although it is generally not necessary to meet all of the rating criteria for a higher rating, see 38 C.F.R. § 4.21, the regulation of activities is the primary characteristic distinguishing the higher rating in this case and, absent a finding that regulation of activities is required, a higher rating is not warranted. At the September 2009 VA examination, the Veteran reported that he was "hospitalized several times for his diabetes to include diabetic ketoacidosis and hypoglycemia," even to the point of being in a coma due to hypoglycemia. However, this has not been verified by objective clinical evidence. To the contrary, though the VA outpatient records indicate the Veteran was hospitalized a number of times over the course of the appeal, such was due to psychiatric problems. The preponderance of the evidence is against finding that the Veteran's diabetes mellitus has been manifested by the need for regulation of activities or symptoms reflected by ketoacidosis or hypoglycemic reactions. To the extent that the Veteran himself contends otherwise, his assertions do not constitute competent medical evidence. Although he is certainly competent to report symptoms that he experienced, the Board finds he is not competent to opine on more complex medical matters such as the current severity of his service-connected diabetes or whether such requires regulation of activities. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Absent such symptomatology, the criteria for an evaluation higher than the currently assigned 20 percent under Diagnostic Code 7913 for the service-connected diabetes mellitus have not been met. The Board's findings above are based on schedular evaluation. The Board has also considered whether extraschedular evaluation is appropriate in this case. The rating schedule represents as far as is practicable the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2009). However, to afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Board may determine, in the first instance, that a veteran has not presented evidence warranting referral for extraschedular consideration, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). 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. Therefore, initially, the level of severity and symptomatology of the veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe the veteran's disability level and symptomatology, the veteran's disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the veteran's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16. If analysis of the first two steps shows that the rating schedule is inadequate to evaluate a veteran's disability picture and that picture shows the related factors discussed hereinabove, the final step requires that the case be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the veteran's disability picture requires the assignment of an extraschedular rating. Id. Here, the Board has considered, under the Thun three-step analysis, whether referral for extraschedular consideration is appropriate. However, the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. Furthermore, the evidence does not show marked interference with employment in excess of that contemplated by the rating schedule, frequent periods of hospitalization, or other evidence that would render impractical the application of the regular schedular standards. Therefore, the Board is not required to remand the Veteran's increased rating claim for consideration of extraschedular ratings under 38 C.F.R. § 3.321(b)(1). See Bagwell, 9 Vet. App. at 338-9; Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, the Board acknowledges the Court's recent holding that a request for a total disability rating based on individual unemployability (TDIU) is not a separate claim for benefits but, rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Crucially, however, the Veteran has not asserted, and indeed medical evidence of record does not support a finding of, unemployability caused by his service-connected diabetes. Consequently, the Board finds that consideration of a TDIU claim is not appropriate at this time. ORDER A rating in excess of 20 percent for the service-connected diabetes mellitus is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs