Citation Nr: 1014477 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 04-25 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating higher than 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had active military service from June 1969 to March 1971. This appeal to the Board of Veterans' Appeals (Board) is from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted the Veteran's claim for service connection for diabetes mellitus and assigned an initial 20 percent rating retroactively effective from December 30, 2001. He appealed, seeking a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals his initial rating, VA must consider whether to "stage" the rating to compensate him for times since the effective date of the award when the disability may have been more severe than at others). In February 2007, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. This additional development included providing the Veteran proper notice to comply with the Veterans Claims Assistance Act of 2000 (VCAA), obtaining additional treatment records, and having him reexamined to reassess the severity of his diabetes - including to address relevant rating criteria. Upon completion of this additional development, the AMC continued to deny the claim in a November 2009 supplemental statement of the case (SSOC) and has since returned the file to the Board for further appellate consideration of the claim. Additional issues of entitlement to service connection for peripheral neuropathy of the lower extremities and erectile dysfunction, both claimed as secondary to (i.e., residual complications of) the service-connected diabetes mellitus, have been raised by the record but have not been adjudicated by the RO as the agency of original jurisdiction (AOJ). Therefore, since the Board does not have jurisdiction over these additional claims, they are referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). FINDING OF FACT The Veteran's diabetes mellitus requires insulin and a restricted diet but has not required him to limit or regulate his activities. CONCLUSION OF LAW The criteria are not met for an initial rating higher than 20 percent for the diabetes mellitus. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1-4.14, 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance with the development of their claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373- 74 (2002). These VCAA notice requirements apply to all elements of a service-connection claim, including the downstream disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, pursuant to the Board's February 2007 remand, letters satisfying the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in March 2007, February 2008, August 2008, May 2009, and July 2009. The March 2007 letter also included information concerning the disability rating and effective date elements of his claim. See Dingess, supra. Thereafter, the AMC readjudicated his claim in a November 2009 SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV) and Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (indicating that if, for whatever reason, VCAA notice was not provided prior to initially adjudicating a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. Moreover, since this appeal arises from the initial rating assigned by the RO after granting service connection for diabetes mellitus, VCAA notice concerning this downstream disability rating element of the claim is not required. The courts have held that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as an initial rating, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement concerning the downstream issue is not resolved. Here, the RO provided this necessary SOC in May 2005, wherein it cited the statutes and regulations governing the assignment of the initial 20 percent rating for diabetes mellitus and discussed the reasons and bases for not assigning a higher initial rating. In addition, VA has fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO and AMC (including as a result of the Board's February 2007 remand) obtained all pertinent records the Veteran identified as relevant to his claim, including recent VA and private treatment records. He was also afforded a VA examination in April 2007, which includes a September 2009 addendum report, in which his diabetes mellitus was evaluated for compensation purposes. The report of that examination and addendum provides the information needed to properly rate this disability, including specifically in terms of addressing the relevant rating criteria. 38 C.F.R. §§ 3.327, 4.2; Caffrey v. Brown, 6 Vet. App. 377 (1994). So another VA compensation examination is not needed and there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). In his response to the November 2009 SSOC, received in December 2009, the Veteran indicated he had more information or evidence to submit in support of his appeal. He therefore asked for VA to wait 30 days to give him a chance to submit this information or evidence. But he did not submit any such additional evidence in the next 30 days (the only additional evidence received was a written brief presentation from his representative). Therefore, since when responding to that SSOC he expressed his understanding that if this additional evidence was not submitted within 30 days, his case would be returned to the Board, the Board is going ahead and deciding his appeal based on the evidence of record. Accordingly, the Board finds that no further development is needed to meet the requirements of the VCAA or Court. II. Entitlement to an Initial Rating Higher than 20 Percent for Diabetes Mellitus The Veteran served in the Republic of Vietnam during the Vietnam era and eventually developed type II (adult-onset) diabetes mellitus. As a result, the RO issued a rating decision in July 2003 granting service connection and assigning an initial 20 percent rating for this resultant disability. He appealed that decision by requesting an initial rating higher than 20 percent. See Fenderson v. West, 12 Vet. App 119 (1999) (holding that, when a Veteran timely appeals his initial rating, VA must consider whether his rating should be "staged" to compensate him for times since the effective date of his award when his disability may have been more severe than at other times during the course of his appeal). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's diabetes mellitus was rated as 20-percent disabling under Diagnostic Code (DC) 7913. Under this code, a 20 percent rating is assigned if the diabetes requires insulin and a restricted diet, or where oral hypoglycemic agents and a restricted diet are required. The next higher rating of 40 requires insulin, a restricted diet, and regulation of activities. An even higher 60 percent rating requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Lastly, a 100 percent rating 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. Id. According to Note (1) in this code, evaluate compensable complications of the diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Note (2) indicates that, when diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. Id. Turning now to the facts of this particular case. While the Veteran's diabetes mellitus requires insulin and a restricted diet, both of which are required for a higher 40 percent rating, there simply is no credible indication this condition also requires limiting or regulating his activity, which is another requirement for this higher 40 percent rating under DC 7913. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (indicating that use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met). Therefore, absent satisfaction of this additional requirement, there is no basis for assigning an initial rating higher than 20 percent for his diabetes mellitus. In making this determination, the Board has reviewed several VA examination reports, as well as various private and VA treatment records. These records show the Veteran's diabetes mellitus has been managed with the use of a restricted diet and insulin since November 2003. However, none of these records indicates he also must regulate his activities to control his diabetes. Indeed, to the contrary, he is actively encouraged to exercise and recreate. The Veteran was examined for VA compensation purposes in June 2003 and more recently in April 2007. The June 2003 examination report indicates he was on a restricted diet to control his diabetes, while the April 2007 examination report notes that, in addition to a restricted diet, he had been on insulin since November 2003. However, neither report indicates he was required to restrict his activities. In fact, the April 2007 VA examination report includes a medical opinion that his activities are unrestricted. And, in a September 2009 addendum opinion, this same examiner indicated there was no basis for altering this opinion after reviewing recent treatment records. Thus, these VA examination reports provide compelling evidence against the assignment of a disability rating higher than 20 percent since the initial grant of service connection. The Board also reviewed numerous VA and private outpatient treatment records dated from 2002 to 2009, none of which indicates the Veteran's diabetes mellitus has restricted his activities or requires that he regulate them. Indeed, several records indicate just the opposite, as a May 2003 report notes he was encouraged to diet and exercise; a July 2005 report notes he exercised on a treadmill weekly; a February 2006 report also notes he had been exercising on a treadmill every day; and a July 2006 report notes he had been exercising regularly and that he "feels great." In sum, these records clearly show that he is not required to restrict or regulate his activities because of his diabetes mellitus. Since there is no credible indication the Veteran is required to restrict or regulate his activities on account of his diabetes mellitus, the preponderance of the evidence is against the claim for a rating higher than 20 percent for this disability since the initial grant of service connection. His unsubstantiated lay testimony is probatively outweighed by the objective medical findings to the contrary. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability, even where not corroborated by contemporaneous medical evidence, but also recognizing the Board retains the authority to weigh this lay evidence against the other evidence of record, including medical evidence). See, too, Rucker v. Brown, 10 Vet. App. 67 (1997) and 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")). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Because the preponderance of the evidence is against the Veteran's claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the appeal is denied. III. Consideration of an Extra-Schedular Evaluation The Board also finds that the 20 percent schedular rating assigned for the Veteran's diabetes mellitus is not inadequate, such that the claim should be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). That is to say, there is no evidence that his diabetes has caused marked interference with employment - meaning above and beyond that contemplated by his 20 percent schedular rating for this disability, or has required frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Id. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). The Board finds that the Veteran's symptomatology and limitation in occupational functioning are reasonably contemplated by the rating schedule. It is therefore unnecessary to reach the question of whether his diabetes has caused marked interference with his employment. See Thun v. Peake, 22 Vet. App. 111 (2008). But even assuming for the sake of argument that his limitations are not reasonably contemplated by DC 7319, there is still no evidence that his diabetes has caused marked interference with employment, meaning above and beyond that contemplated by the assigned 20 percent rating. Indeed, the April 2007 VA examination report includes a medical opinion that the Veteran's diabetes has not impacted his ability to work as a fire fighter. There also is no indication he has been hospitalized for his diabetes; rather, his evaluation and treatment has been on an outpatient basis, not as an inpatient, much less frequent inpatient. Under these circumstances, the Board is not required to remand this case for extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER The claim for an initial rating higher than 20 percent for diabetes mellitus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs