Citation Nr: 1015455 Decision Date: 04/28/10 Archive Date: 05/06/10 DOCKET NO. 08-03 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for diabetes mellitus, type II with nephropathy. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In his substantive appeal (VA Form 9) received at the RO in January 2008, the Veteran requested a hearing before a Veterans Law Judge. The requested hearing was scheduled for February 2010, and the Veteran was advised as to the date and time of the hearing. He failed to appear for the hearing without explanation and has not requested the hearing be rescheduled. Therefore, the request is considered withdrawn. FINDING OF FACT The Veteran's diabetes mellitus requires insulin, medication, and a restricted diet but does not require the Veteran to regulate his activities. CONCLUSION OF LAW The criteria for an increased rating in excess of 20 percent for diabetes mellitus, type II with nephropathy are not met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an increased disability rating for his service-connected diabetes mellitus, type II with nephropathy. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The record reflects the Veteran was provided VCAA notice in a letter mailed in January 2007 that advised him of the disability-rating and effective-date elements of his service connection claim, and the Veteran had ample opportunity to respond. Although the January 2007 letter was sent after the initial adjudication of the claim, the Board finds there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, there is no indication in the record or reason to believe that any ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs), service personnel records (SPRs), VA medical records, and VA compensation and pension (C&P) examinations have been associated with the claims folder. The Board notes that the Veteran appears to question the adequacy of the VA examiners or examinations. The Board finds that the competency of a VA examiner is presumed, absent a showing of some evidence to the contrary. Hilkert v. West, 12 Vet. App. 145 (1999). Finally, neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate his claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2009). 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient. Above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2009). The RO has rated the Veteran's diabetes mellitus (DM) under the criteria of 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under that DC, a 20 percent rating is warranted for DM requiring insulin and restricted diet, or oral hypoglycemic and restricted diet. A 40 percent rating is warranted for DM requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating is warranted for DM 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. A 100 percent rating is warranted for DM 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. Per Note (1) to Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran is seeking increased disability rating for his DM, which is currently evaluated as 20 percent disabling. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability. In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A higher evaluation of 40 percent requires diabetes to be controlled by insulin, restricted diet, and regulation of activities are required. As noted below, the Veteran's impairment does not more closely approximate the criteria for a 40 percent rating. The Veteran had a VA C&P examination for DM in November 2005 in which no ketoacidosis or hypoglycemic reactions were noted. The Veteran reported that he was following his low carbohydrate diet; did not have restriction of activities; and received oral medications for his diabetes. No history of impotency was reported and the Veteran was not aware of nephropathy. He was diagnosed with DM type II with nephropathy and cellulitis, left leg aggravated by but not caused by DM. The RO continued a 20 percent disability rating for the Veteran's DM, type II with nephropathy in a February 2006 rating decision. The Veteran submitted the instant claim in October 2006 by stating that he had new evidence that his diabetes had gotten worse. He furthered that he was taking shots of insulin to help control his blood/sugar. VA medical center (VAMC) records dated June 2007 showed that the Veteran had elevated triglycerides that the examiner opined might be due to his uncontrolled diabetes. The Veteran was instructed to follow a diet low in saturated fat and cholesterol; maintain a desirable weight; and exercise at least thirty minutes a day. The examiner stated that this would not only help the Veteran lose weight, but improve his overall physical fitness and increase his good cholesterol. The Veteran stated in his formal appeal (VA Form 9) that his diabetes had worsened because his blood sugar was still high and he was given more insulin or some other type of pill. The Veteran also commented about controlling his weight, diet, and exercise. VAMC records from June 2008 showed that the Veteran reported not checking his blood sugar at home regularly, but instead checked it whenever he wanted to check it. He also stated that he did not care much about diabetes control, took his medications, but ate when he wanted to eat without closely checking his blood sugar. The examiner adjusted his insulin dose, continued his pills, and counseled him as to the importance of controlling his diabetes. The Veteran had a VA C&P examination for DM in August 2009 in which his claims file was reviewed. No history of ketoacidosis or hypoglycemic reaction was noted. The Veteran reported that he did not follow a diet too closely and did not care that much about following a diet. The examiner noted that he was not certain as to the reliability of the Veteran's statements as he appeared depressed. No restriction of activities was noted. The Veteran's treatment was noted to include taking medication for his diabetes. The Veteran was diagnosed with DM type II, insulin dependent; no evidence of diabetic nephropathy or neuropathy; and hypertension not secondary to DM. At this point the Board finds that the Veteran does not have any complications of diabetes that can be separately service- connected or rated. Based on review of the evidence above, the Board finds the criteria for a rating in excess of 20 percent are not met. The pertinent medical evidence of record shows the Veteran's DM, type II has required insulin, medication, and a restricted diet as required for a 20 percent disability rating. However, the Veteran has not been instructed to regulate his activities because of his diabetes as is required for a 40 percent disability rating. The Board notes that the aforementioned VAMC records from June 2007 showed that the Veteran was instructed to maintain a desirable weight and exercise at least thirty minutes a day in order to help him lose weight, improve his overall physical fitness, and increase his good cholesterol. The Board finds that the Veteran was not instructed to exercise, or regulate any activity, because of his DM. In this case the Board also finds the statements by the Veteran to be credible in describing his own symptoms. However, even affording those statements full credibility, they do not show symptoms more closely approximating the schedular criteria for the next higher evaluation. The Board has considered whether there is any other schedular basis for granting this claim but has found none. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The Court has held that the threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected DM are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects the Veteran has not required frequent hospitalizations for his DM and that the manifestations of the disability are not in excess of those contemplated by the schedular criteria. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by assigned rating. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Finally, the Board must consider whether a claim has been raised for a total disability rating for individual unemployability due to service-connected disabilities. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has not asserted his service-connected DM renders him unemployable; accordingly, Rice is not applicable Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. ORDER Entitlement to a disability rating in excess of 20 percent for DM, type II with nephropathy is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs