Citation Nr: 1016985 Decision Date: 05/06/10 Archive Date: 05/19/10 DOCKET NO. 06-12 932 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to service connection for a heart disorder, claimed as secondary to the service-connected Type II diabetes mellitus. 2. Entitlement to an initial rating in excess of 10 percent for the service-connected Type II diabetes mellitus. 3. Entitlement to an initial rating in excess of 10 percent for the service-connected peripheral diabetic neuropathy of the left lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for the service-connected peripheral diabetic neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The Veteran had active military service from May 1968 to February 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the RO. The Veteran's Substantive Appeal contained a request for a hearing before a Veterans Law Judge, and a hearing was duly scheduled at the RO in September 2006. However, the Veteran withdrew his request in writing before the hearing was convened. In June 2008, the Board remanded the matter to the RO for further development of the record. FINDINGS OF FACT 1. The Veteran currently is not shown to have a diagnosed heart disorder. 2. The service-connected diabetes mellitus is shown to be manageable by a restricted diet only. 3. The service-connected diabetic neuropathy of the left lower extremity is shown to be manifested by a disability picture that more nearly approximates that of moderate incomplete paralysis of the sciatic nerve. 4. The service-connected diabetic neuropathy of the left lower extremity is shown to be manifested by a disability picture that more nearly approximates that of moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The Veteran does not have heart disability due to disease or injury that was incurred in or aggravated by active service; nor may any be presumed to have been incurred therein; nor is any proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). 2. The criteria for the assignment of a disability rating in excess of 10 percent for the service-connected diabetes mellitus type II, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119 including Diagnostic Code 7913 (2009). 3. The criteria for the assignment of an evaluation of 20 percent for the service-connected diabetic peripheral neuropathy of the left lower extremity have been met. 38 U.S.C.A. §§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.123, 4.124a including Diagnostic Code 8520 (2009). 4. The criteria for the assignment of an evaluation of 20 percent for the service-connected diabetic peripheral neuropathy of the right lower extremity have been met. 38 U.S.C.A. §§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.123, 4.124a including Diagnostic Code 8520 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, and 5126 (West 2002 & Supp. 2009)) redefined VA's duties to notify and to assist claimants in the development of their claims. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Here, the Board finds on review of the record that the provisions of VCAA have been met and substantially addressed in this appeal involving the Veteran's claims for service connection and higher initial ratings. The Veteran in this sense has been actively involved in rating process and is shown by his statements to understand the criteria required for service connection and higher rating for his service- connected disabilities. Moreover, because these matters have been subject to further development action taken by the Board in June 2008, the Veteran was afforded with an opportunity to submit evidence to support his claim and to appear for a VA examination to evaluate the current severity of his service-connected disability. Finally, at this time, the Board finds no basis in the record or assertion by the Veteran for undertaking further development in this case. Service Connection for a Heart Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Further, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2008); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic disabilities, such as cardiovascular disease, to include hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran's service treatment records are negative for any complaints, findings or diagnosis referable to a heart condition. The January 2005 VA examination showed atypical chest pain. The examiner referred to the Veteran's cardiologist's note of May 2004, which stated that the Veteran had normal coronaries and normal LV function. The VA treatment records and a February 2009 VA examination also did not show any diagnosis of a heart disorder. There is evidence of hypertension, but the VA examiners opined that it is not related to the service-connected diabetes mellitus. The Board notes that Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, while the Veteran suffers atypical chest pain, pain alone does not in and of itself constitute a disability, and the Veteran has not been diagnosed with any current heart disability. Accordingly, service connection for a left leg disability is denied. The Veteran has asserted that there is a relationship between the service-connected diabetes mellitus and the claimed heart condition. However, as a layman, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter such as a diagnosis or etiology. While a layman such as the veteran can certainly attest to his in service experiences and current symptoms, he is not competent to provide an opinion linking that disability to service. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Due to the foregoing, service connection for a heart disorder must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings may be appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. See e.g. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). Diabetes Mellitus Diagnostic Code 7913 provides ratings for diabetes mellitus. The Veteran is currently rated 10 percent, which is assigned when diabetes is manageable by a restricted diet only. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. 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 rated, is rated 60 percent disabling. 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 rated, is rated 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. The VA examination conducted in January 2005 lists a diagnosis of diabetes mellitus, type II, diet controlled. The examination report listed the Veteran's medications, which did not include any oral hypoglycemic agent. The February 2009 VA examination indicates that the Veteran's diabetes mellitus was stable and that he was never on medications for the condition. The VA treatment records have been obtained and associated with the claims file. Despite the Veteran's assertions, the treatment records are consistent with the VA examinations in showing diabetes controlled solely by diet. Because there is no competent evidence of the need for insulin or an oral hypoglycemic agent, required for a higher rating under Diagnostic Code 7913, for any period of increased rating claim, the claim for increased rating in excess of 10 percent must be denied. 38 C.F.R. §§ 4.3, 4.7. Peripheral Neuropathy The RO evaluated the Veteran's service-connected diabetic neuropathy of the left and right lower extremities at 10 percent evaluations for each side under Diagnostic Codes 8520. See 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides ratings for paralysis of the sciatic nerve. Diagnostic Code 8620 provides a rating for neuritis of the sciatic nerve. Diagnostic Code 8720 provides a rating for neuralgia of the sciatic nerve. The Veteran's current 10 percent separate evaluations contemplate mild incomplete paralysis of the sciatic nerves. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Moderate incomplete paralysis is rated 20 percent disabling; Moderately severe incomplete paralysis is rated 40 percent disabling; Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620, 8720 (2008). Incomplete paralysis indicates a degree of lost or impaired function substantially less than the type for complete paralysis of a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. When the involvement is bilateral, the ratings should be combined with application of the bilateral factor. 38 C.F.R. § 4.124a (2009). The January 2005 VA examination diagnosed the Veteran with diabetic neuropathy that caused numbness and balance difficulties. However, the examiner also diagnosed spinal stenosis with radiculopathy of the lower extremities, not secondary to diabetes. The examiner noted that both diagnoses contribute to his being wheelchair bound. The February 2009 VA examination diagnosed peripheral and autonomic diabetic neuropathy. The examiner indicated that the Veteran's gait was normal. As the VA examiners could not precisely distinguish between the effects of diabetic neuropathy and those caused by the nonservice-connected low back disability, the Board must extend the benefit of the doubt to the Veteran and assign a 20 percent rating for each lower extremity. The examiner's opinion that the diabetic neuropathy contributed to the need for a wheelchair indicates that the Veteran's incomplete paralysis is at least moderate. No higher ratings are warranted because the Veteran has a normal gait when not using the wheelchair. The Board has also considered 38 C.F.R. §§ 4.40, 4.45 (2009), addressing the impact of functional loss, weakened movement, excess fatigability, incoordination, and pain. See also Deluca v. Brown, supra. However, the objective evidence of record showed no additional limitations of motion, muscle atrophy, contractures, weakness or lack of coordination. The Veteran is not entitled to an increased evaluation based on these provisions because the evidence of record shows no additional functional impairment, fatigability, incoordination, weakness, or pain beyond that already contemplated within the two 20 percent evaluations. 38 C.F.R. §§ 4.40, 4.45; see also Deluca, 8 Vet. App. at 206. Extraschedular Consideration The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the applicable schedular criteria are inadequate for the purpose of compensating the veteran. 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 extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria are quite clear in identifying the particular disability picture required for the currently assigned 10 percent rating for the service-connected diabetes mellitus and the separate 10 percent ratings for the related peripheral neuropathy of each lower extremity. As discussed, the described standards adequately contemplate the manifestations presented in this case in the sense that unusual or exceptional circumstances that would require a different approach have not been identified by the Veteran. Clearly, for one thing, the record does not reflect that the Veteran has required frequent hospitalization or experienced marked interference with employment beyond those contemplated by the criteria established for the purpose of rating. In sum, there is no suggestion that the average industrial impairment due to service-connected disability would be in excess of or exceptionally incompatible with that contemplated under the rating criteria. Accordingly, for these reasons, the Board determines that referral of this case for extraschedular consideration is not in order. ORDER Service connection for claimed heart disorder is denied. An increased rating in excess of 10 percent for the service- connected Type II diabetes mellitus is denied. An initial rating of 20 percent, but no more for the service- connected diabetic neuropathy of the left lower extremity is granted, subject to the regulations controlling disbursement of VA monetary benefits. An initial rating of 20 percent, but no more for the service- connected diabetic neuropathy of the right lower extremity is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs