Citation Nr: 1031887 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 08-03 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, denying the Veteran's claim for an increased disability rating for his diabetes mellitus. FINDING OF FACT The Veteran's diabetes mellitus type II is treated daily with insulin and requires a restricted diet; it does not require restriction of activities and the Veteran has not been hospitalized or required bimonthly visits to a diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. CONCLUSION OF LAW The criteria for establishing entitlement to a disability evaluation in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.79, 4.119, Diagnostic Code 7913 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre- adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. For an increased disability rating claim, VA is required to provide the Veteran with generic notice - that is, the type of evidence needed to substantiate the claim. This includes evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A letter sent to the Veteran in March 2007 informed the Veteran of the need to demonstrate a worsening of his service-connected diabetes mellitus, as well as notifying him of the need to demonstrate an impact on his employment as well as providing him with general notice regarding how disability ratings and effective dates are assigned. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records as well as the records of the Veteran's outpatient treatment with VA. Significantly, the Veteran has not identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. The Veteran was provided with VA examinations relating to his diabetes mellitus in April 2007 and May 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's diabetes mellitus since the May 2009 VA examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. The Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claims. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. In light of the above, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Relevant Facts The Veteran contends that he is entitled to a 40 percent disability rating for his service-connected diabetes mellitus. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's diabetes mellitus does not require restriction of activities; and, as such, he is not entitled to a disability rating in excess of 20 percent for his diabetes mellitus. For historical purposes, the Veteran was originally granted service connection for diabetes mellitus in a March 2005 rating decision. A disability rating of 20 percent was assigned under Diagnostic Code 7913, effective as of December 27, 2004. In March 2007, VA received the Veteran's claim seeking an increased disability evaluation. This claim was denied by the RO in a May 2007 rating decision. The Veteran appealed this decision to the Board in January 2008. The record contains a December 2006 outpatient treatment record regarding the Veteran's diabetes mellitus. It was noted that the Veteran took insulin injections twice per day. It was also recommended that the Veteran follow a special diet for diabetes mellitus. The benefits of exercise were also stressed to the Veteran. A May 2007 outpatient treatment record notes that the Veteran's insulin dose was increased in an attempt to control the Veteran's diabetes mellitus. The Veteran was afforded a VA examination for his diabetes mellitus in April 2007. The examiner noted that the Veteran required insulin two times per day to treat his diabetes mellitus. The examiner also noted that the Veteran followed a restricted or special diet as part of his treatment. However, the Veteran was not restricted in his ability to perform strenuous activities and there were no episodes of hypoglycemic reactions or ketoacidosis. There was also no evidence of peripheral neuropathy related to diabetes, diabetic skin symptoms, neurovascular symptoms related to diabetes, cardiac symptoms related to diabetes, or diabetic related peripheral vascular disease. However, the examiner concluded that the Veteran did suffer from erectile dysfunction and mild non- proliferative diabetic retinopathy secondary to his diabetes mellitus. The Veteran was afforded an additional VA diabetic examination in May 2009. The examiner noted that the Veteran's diabetes mellitus was stable since its initial onset. The Veteran treated his diabetes mellitus with insulin more than once per day. The Veteran denied a history of hospitalization or episodes of hypoglycemic reactions or ketoacidosis. However, the Veteran did report occasional hypoglycemic reactions that he treated at home. The examiner also noted that the Veteran was instructed to follow a restricted or special diet. However, he was not restricted in his ability to perform strenuous activities. The Veteran denied symptoms of peripheral vascular disease, cardiac disease, neurovascular disease, peripheral neuropathy, diabetic nephropathy, skin disorders or gastrointestinal disorders. Analysis Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the 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 ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2009). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2009). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the As is the case here, where entitlement to compensation has already 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). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diagnostic Code 7913 provides ratings for diabetes mellitus. 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. 38 C.F.R. § 4.119 (2009). "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The criteria for rating diabetes are conjunctive rather than disjunctive. Id. The previously outlined medical evidence demonstrates that the Veteran's diabetes mellitus does not require regulation of activities. Therefore, a higher disability rating of 40 percent is not warranted. See id. The evidence also demonstrates that the Veteran has not been hospitalized or required bimonthly visits to a diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions. As such, a 60 percent disability rating is not warranted either. See id. Therefore, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to an increased disability rating for his service-connected diabetes mellitus. 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 Diagnostic Code 7913. 38 C.F.R. § 4.119. In the present case, the Veteran suffers from erectile dysfunction and diabetic retinopathy as a result of his service-connected diabetes mellitus. However, the Veteran is already service-connected for these disabilities. The Board has also considered the lay testimony offered by the Veteran in support of his claim. In his May 2007 notice of disagreement and his January 2008 appeal to the Board, the Veteran indicated that he believed he was entitled to a 40 percent disability rating for his diabetes mellitus because he used insulin and he had to restrict his diet. However, the rating criteria clearly indicate that this symptomatology warrants a 20 percent disability rating. 38 C.F.R. § 4.119. It is not until diabetes mellitus requires restriction of activities that a 40 percent disability rating is warranted. As such, the Veteran's testimony does not demonstrate entitlement to an increased disability rating. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2009). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, there is no evidence that the service-connected diabetes or its ramifications have required any hospitalization or caused marked interference with employment. The Veteran's service-connected diabetes mellitus requires daily use of insulin and a restricted diet. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4119, Diagnostic Code 7913. The rating criteria reasonably describe the Veteran's disability and referral for consideration of an extraschedular rating is, therefore, not warranted. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The evidence pertaining to the increased rating claim in this case shows that the service-connected diabetes and its various manifestations do not by themselves or together with other service-connected disabilities render the Veteran unemployable. On the contrary, at his May 2009 VA examination, he reported that he retired in 1998 as a result of age and/or longevity. The Board therefore finds that the record here does not raise a TDIU claim. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate in this case. However, the evidence of record demonstrates that the Veteran has not been required to restrict his activities as a result of his diabetes mellitus at any time during the pendency of his claim. As such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus must be denied. ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs