Citation Nr: 1032017 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-24 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to increases in the "staged" ratings (of 10 percent prior to March 17, 2008 and 20 percent from that date) assigned for the Veteran's diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Lawrence D. Levin, Esq. ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1967 to July 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for diabetes mellitus, rated 10 percent, effective March 4, 2005 (date of claim), and denied TDIU. In December 2007, the case was remanded for additional development and to satisfy notice requirements. A July 2008 rating decision increased the rating for diabetes mellitus to 20 percent, effective March 17, 2008. As the Veteran has not expressed satisfaction with the "staged" increase in the rating, both "stages" of the rating remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The issues have been characterized to reflect that staged ratings are assigned for the Veteran's diabetes mellitus. FINDINGS OF FACT 1. Prior to March 17, 2008, the Veteran's diabetes mellitus was manageable by restricted diet only; insulin or hypoglycemic agents were not required. 2. From March 17, 2008, the Veteran's diabetes mellitus has required oral hypoglycemic agents and a restricted diet; insulin and regulation of activities have not been required. 3. The Veteran's service-connected disabilities, posttraumatic stress disorder (PTSD), rated 50 percent; diabetes mellitus, now rated 20 percent; and right wrist injury, rated 10 percent, have a combined 60 percent rating, and are not shown to be of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for diabetes mellitus prior to March 17, 2008, and/or a rating in excess of 20 percent for diabetes from that date are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.119; Diagnostic Code (Code) 7913 (2009). 2. The schedular criteria for TDIU are not met, and TDIU is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19, 4.25 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Regarding the matter of the rating assigned for the Veteran's diabetes mellitus, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A July 2005 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while a March 2010 supplemental SOC (SSOC) readjudicated the matter after the appellant and his attorney responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield, 20 Vet. App., at 542. A March 2008 letter also provided him with general disability rating and effective date criteria, and an August 2008 letter provided him with the rating criteria for diabetes mellitus. The Veteran has had ample opportunity to respond/supplement the record. It is not alleged that notice in this matter was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Regarding the Veteran's claim for TDIU, he was advised of VA's duties to notify and assist in the development of this claim prior to its initial adjudication. August 2004 and March 2008 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The March 2008 letter also informed him of effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this matter was less than adequate. The Veteran's pertinent postservice treatment records have been secured. The RO arranged for a VA examination in April 2008 with an addendum opinion in June 2008. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disabilities on appeal to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). Notably, these matters were remanded in December 2007 for the association of updated VA treatment records with the record, and for a VA examination to determine the current severity of the Veteran's diabetes mellitus and its impact (along with other service-connected disabilities) on his employment. Both actions were completed on remand. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Diabetes Mellitus Disability evaluations are determined by the application of a schedular rating, which is based on average impairment of earnings capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's statements describing his symptoms and condition are competent evidence to the extent that he can describe what he experiences. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. In a claim disagreeing with the initial rating assigned with a grant of service connection, as here, separate ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings have been assigned by the RO for diabetes; the evidence does not show any further distinct periods of time during the appeal period when the criteria for a higher rating were met. Diabetes mellitus is rated under Code 7913, which provides for a 10 percent rating if the condition is manageable by restricted diet only. A 20 percent rating is warranted if the condition requires insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. The next higher rating, 40 percent, is warranted when insulin, a restricted diet, and regulation of activities are required. 38 C.F.R. § 4.119. March 2003 to November 2004 VA treatment records are silent for any complaints, findings, treatment, or diagnosis of diabetes mellitus. February 2005 to March 2008 VA treatment records note that diabetes mellitus was diagnosed in December 2004. In December 2006, it was noted that the Veteran's diabetes was "excellently controlled with lifestyle modifications." On various other dates, it was also noted that the Veteran had "done [an] excellent job controlling [his diabetes] with diet and exercise." These records were silent for any notations that the Veteran had been prescribed oral hypoglycemic agents or insulin for his diabetes. January 2008 to June 2008 private treatment records from Dr. G.L. show that the Veteran first sought treatment from this provider in January 2008. After the first visit, he was referred to an endocrinologist and issued a diabetes test monitor. Thereafter, he sought regular follow-up treatment for his diabetes (and other medical conditions) through June 2008. A medication log sheet shows that Januvia was prescribed for the first time on March 17, 2008. February 2008, April 2008, and July 2008 private treatment records from Dr. M.A. show that the Veteran was referred to her care by Dr. G.L. During the Veteran's first visit in February 2008, he reported having diabetes mellitus for three years and being on Januvia as of January 2008. He also reported that he followed a diet, did not exercise, and had only had one hypoglycemic reaction. After a physical examination, primary diagnosis of abnormal glucose was assessed. The Veteran was instructed to discontinue Januvia for a two hour glucose tolerance test to see if he had diabetes or impaired glucose tolerance. In April 2008, the Veteran met with a dietician and diabetic educator for counseling and diabetes self-management. In July 2008, the Veteran complained of abnormal glucose. He was advised to continue his current diet and exercise program. On April 2008 VA examination, the Veteran reported that his diabetes mellitus had been diagnosed two years ago, and that he had been recently reevaluated by a private physician and had a glucose tolerance test in February 2008. His two-hour postprandial was 202 mg/dl, which was in the barely diagnostic range for diabetes, and his last hemoglobin A1C of December 2007 was well within the normal range at 5.4 percent. The Veteran reported that his private physician had started him on Januvia, once a day. He also reported that his private physician had advised him to lose weight to help with glycemic control, but he was not on any special diet and had not been counseled by a dietician. He stated he had a sugar-free diet. After a physical examination and diagnostic testing, mild type 2 diabetes mellitus with normal hemoglobin A1C but slightly positive glucose tolerance test was diagnosed. The examiner also noted that the Veteran's activities were not restricted due to his diabetes. April 2008 to February 2010 VA treatment records show that in May 2008, the Veteran's diabetes mellitus was noted to be under excellent control without any medications. On October 2008 medication reconciliation, it was noted that the Veteran had been prescribed Metformin by a non-VA healthcare provider. In June 2009 and February 2010, his diabetes was noted to be under excellent control with Metformin. Prior to March 17, 2008 For the period of time prior to March 17, 2008, the Veteran's diabetes mellitus has been assigned a 10 percent rating. VA and private treatment records from this period of time show that his diabetes was excellently controlled with lifestyle modifications, including diet and exercise. As the record shows that prior to March 17, 2008, the Veteran's diabetes was managed by restricted diet only, this meets the schedular criteria for a 10 percent rating under Code 7913. Because the criteria for progressively increasing ratings for diabetes are stated in the conjunctive, to warrant the next higher rating (20 percent) at any point in time prior to March 17, 2008, it must be shown that during such time the Veteran's diabetes required restricted diet and insulin or an oral hypoglycemic agent. A February 2008 private treatment record from Dr. M.A. notes the Veteran reported he had Januvia (an oral hypoglycemic agent) prescribed in January 2008. However, such notation was based on the Veteran's reported history, and a close review of the record found that VA treatment records prior October 2008 are silent for any diabetes-related medications, and that private treatment records show Januvia was first prescribed on March 17, 2008. Notably, a bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (The Board may reject a medical opinion/finding that is based on facts provided by the Veteran which have been found to be inaccurate or because other facts present in the record contradict the facts provided by the Veteran which formed the basis for the opinion). Consequently, the Board does not find the February 2008 treatment record from Dr. M.A. to be sufficient evidence to show that the Veteran was started on an oral hypoglycemic agent in January 2008. As there is no evidence that at any time prior to March 17, 2008, the Veteran was required to use insulin or an oral hypoglycemic agent for his diabetes mellitus, a rating in excess of 10 percent prior to that date is not warranted. From March 17, 2008 From March 17, 2008 (the date the evidence of record shows the Veteran was first prescribed an oral hypoglycemic agent), the Veteran's diabetes mellitus has been assigned a 20 percent rating. The next higher (40 percent) rating requires additional factors of insulin and regulation of activities. There is no evidence that at any time during the appeal period the Veteran has been required to use insulin to treat his diabetes mellitus or to regulate his activities due to his diabetes mellitus. Insulin use is not reported in the treatment records; and it was specifically noted (see April 2008 VA examination report, e.g.) that the Veteran's activities were not restricted due to his diabetes. Consequently, a rating in excess of 20 percent is not warranted for this time period. The Board has also considered whether referral of this claim for consideration of an extraschedular evaluation is indicated. 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, it must be determined whether the disability picture is such that schedular criteria are inadequate, i.e., whether there are manifestations of impairment that are not encompassed by the schedular criteria. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the Board must determine whether the claimant's 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 the Veteran's disability picture requires the assignment of an extraschedular rating. Here, there is no objective evidence or allegation in the record of symptoms of and/or impairment due to diabetes mellitus that are not encompassed by the ratings assigned. Therefore, the schedular criteria are not inadequate. Furthermore, the disability picture presented by the Veteran's diabetes mellitus is not shown to be exceptional (on April 2008 VA examination, it was noted that his diabetes did not restrict his activities). Accordingly, referral for extraschedular consideration is not warranted. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular- renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice- connected disabilities on his ability to function. In Floyd v. Brown, 9 Vet. App. 95 (1996), the Court held that the Board may not assign an extraschedular disability rating under 38 C.F.R. § 3.321(b)(1) in the first instance because 38 C.F.R. § 3.321(b)(1) establishes a specific procedure requiring all claims under that provision to be referred to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for initial decision. However, the Court held that the Board may be required to consider the applicability of 38 C.F.R. § 3.321(b)(1) when the issue has been raised before the Board. The Veteran's current service-connected disabilities and respective ratings are: PTSD, rated 50 percent; diabetes mellitus, rated 20 percent; and right wrist injury, rated 10 percent. The combined rating for these disabilities is 60 percent. 38 C.F.R. § 4.25. Thus, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not met. Here, the Veteran's service-connected PTSD, diabetes mellitus, and/or right wrist injury are not so exceptional or unusual as to warrant referral to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration. First, the record does not show frequent periods of hospitalizations or any inpatient treatment for the service-connected disabilities. Second, the evidence does not support a finding that the Veteran is demonstrably unable to obtain or maintain employment due to his service- connected disabilities. VA treatment records consistently note that the Veteran's diabetes mellitus is well-controlled, and in June 2007, the Veteran indicated to his treating psychiatrist a desire to attend law school. He reported that his anxiety from PTSD prevented him from learning in crowd-like settings, but thought he would do well learning on his own at home. His psychiatrist supported this idea, and indicated this would be good for his mental health. On April 2008 VA examination, it was noted that the Veteran had worked for the post office for 25 years and retired when he could no longer do any lifting. In a June 2008 addendum opinion, the examiner stated, "His [service- connected] disabilities of diabetes, limited motion of the right wrist, and PTSD did not cause his retirement nor do they limit his employability now." In a statement received from the Veteran in May 2009, he reported that he suffers from chronic pain in his right shoulder, neck, and back, and that he has staples holding his rib cage together that cause constant pain. He also indicated that a fungal tumor had been previously removed from his lung cavity, and that he had chronic obstructive pulmonary disease (COPD). He then stated: My employability was very limited with these conditions. When my Type II diabetes started and worsened, I could no longer work or be employed. I simply take too much medication to be employed by anyone . . . Now add to my P.T.S.D., Type II diabetes, and bad wrist, all service connected illnesses, C.O.P.D., permanent rib and back pain, and a stuck right shoulder; they have overwhelmed my ability to have any type of employment . . . These service connection illnesses can be the sole and correct reason for unemployability, since they occurred after my other health problems. A reasonable person can simply draw the dots: broke wrist - fungus - surgery - broke ribs - stuck shoulder - C.O.P.D. - P.T.S.D. - sleep disorder & blood pressure, I could still function; then, Type II - Thyroid - Neuropathy. Type II broke down any hope of employment. My function level has decreased. The Veteran's VA and private treatment records also show that he suffers from multiple medical conditions, including, but not limited to: a refraction disorder, a wrist injury, hypothyroidism, chest wall pain, abnormal findings in the lung field, presbyopia, diabetes mellitus, shoulder pain, asthma, hyperlipidemia, PTSD, palpitations, lumbosacral neuritis, back pain, muscle spasms, hypertension, and a neoplasm in the lung. However, apart from PTSD, the right wrist injury, and diabetes mellitus, the remaining medical conditions are nonservice- connected disabilities that may not be considered when determining whether the Veteran is employable for TDIU benefits purposes. Therefore, while the Board is sympathetic to the Veteran's May 2009 argument that his service-connected disabilities in addition to his nonservice-connected disabilities render him incapable of employment, such evidence does not show that his service-connected disabilities by themselves would prevent him from obtaining and maintaining any gainful employment. For the reasons noted above, the evidence is against a finding that the Veteran is unemployable because of his service-connected disabilities, alone. Accordingly, the preponderance of the evidence is against his claim for TDIU. ORDER The appeal seeking a rating in excess of 10 percent for diabetes mellitus prior to March 17, 2008, and a rating for diabetes in excess of 20 percent from that date is denied. Entitlement to TDIU is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs