Citation Nr: 1032222 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 07-14 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, type II with erectile dysfunction and non-proliferative retinopathy, currently rated as 20 percent disabling. 2. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity, rated as 10 percent disabling prior to September 15, 2009, and 20 percent disabling from September 15, 2009. 3. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, rated as 10 percent disabling prior to September 15, 2009, and 20 percent disabling from September 15, 2009. 4. Entitlement to a total rating based on unemployability due to service-connected disabilities prior to September 15, 2009. REPRESENTATION Veteran represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1969. This case 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 Manchester, New Hampshire. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2007. A transcript of his hearing is of record. The Board remanded the case in September 2008 for further development. While the case was in remand status, the Veteran was granted increased ratings of 20 percent for peripheral neuropathy of the lower extremities, and a total rating based on unemployability due to service-connected disabilities. All of these increases were effective from September 15, 2009. Although the originating agency viewed the grant of a total rating from September 15, 2009, as a complete grant of the benefit sought on appeal, the Board disagrees. In this regard, the Board notes that the Veteran's claim for a total rating was received years prior to the effective date of the grant. Moreover, the record does not reflect that the Veteran has withdrawn this issue from his appeal. FINDINGS OF FACT 1. The Veteran's diabetes mellitus does not require any restriction of activities; he does not have penile deformity; and his central visual acuity is correctable to 20/20 bilaterally with no impairment of vision field. 2. Throughout the period of these claims, the Veteran's bilateral lower extremity peripheral neuropathy has most nearly approximated moderate incomplete paralysis of the sciatic nerve. 3. Throughout the period of the claim, the Veteran has been unable to obtain or maintain any form of substantially gainful employment as a result of his service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.115b, Diagnostic Code 7520, § 4.84a, Diagnostic Code 6011, § 4.119, Diagnostic Code 7913 (2009). 2. An evaluation of 20 percent, but no higher, for right lower periphery neuropathy is warranted throughout the period of the claim. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2009). 3. An evaluation of 20 percent, but no higher, for left lower periphery neuropathy is warranted throughout the period of the claim. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2009). 4. Entitlement to TDIU is established throughout the period of the claim prior to September 15, 2009. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The 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 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 Court further held that VA failed to demonstrate that "lack of such a pre-AOJ- decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in a letter sent in November 2008. Although the Veteran was not provided complete notice until after the initial adjudication of the claims, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claims. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of any of the claims 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 record reflects that service treatment records, Social Security Administration (SSA) records, and all other available post-service medical evidence identified by the Veteran have been obtained. In addition, the Veteran has been afforded appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate any of the claims. The Board is also unaware of any such evidence. Therefore, the Board is also satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claims were insignificant and non-prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. 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 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet warrants a 20 percent rating. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2009). Complications of diabetes are to be evaluated 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. 38 C.F.R. § 4.119, Note (1) (2009). Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2009). The ratings schedule additionally notes that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Damage to the retina may be rated as 10 percent disabling if there are localized scars, atrophy, or irregularities of the retina that are centrally located with irregular, duplicated, enlarged or diminished images. 38 C.F.R. § 4.84a, Code 6011 (2009). Otherwise, eye impairment is rated on the basis of impairment of central visual acuity. The best distant vision after the best correction by glasses will be the basis for rating. 38 C.F.R. § 4.75, 4.84a, Codes 6063-6079 (2009). Visual impairment can also be rated on the basis of loss of field of vision. 38 C.F.R. § 4.76, 6080, 6090 (2009). The Board acknowledges that the portion of the rating schedule that addresses disabilities of the eyes was revised effective December 10, 2008. Only claims received on or after December 10, 2008 will be evaluated under the new criteria. 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The Veteran's claim was received prior to December 10, 2008, and therefore, the revised criteria are not for application. A 20 percent rating is authorized for deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7520. In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2009). A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of determining whether there is one disability ratable at 60 percent or more, disabilities resulting from common etiology will be considered one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 (West 2002); 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 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 Veteran's service-connected disabilities. 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 the disabilities. 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). The Veteran was afforded a VA examination during October 2005. The Veteran reported that he was on Lantus as well as oral hypoglycemics; he tried to follow a diabetic diet; he denied any hyperglycemic or hypoglycemic reactions; and he had no hospitalizations for diabetic ketoacidosis. The Veteran indicated that his erectile dysfunction was managed through a combination injectable and that he injected himself immediately prior to sex. Concerning his peripheral neuropathy, the Veteran claimed numbness in his toes and feet. The Veteran had some retinopathy with evidence of severe nonproliferative diabetic retinopathy in his right eye. Private treatment records dated from June 2005 to January 2006 indicate treatment with oral agents for the Veteran's diabetes, with the Veteran forgetting to take his medications and not following written instructions. A January 2006 letter, written by Dr. S, indicates that the Veteran denied numbness or tingling in his right lower extremity. VA treatment records indicate that the Veteran was seen every three months from June 2005 in the eye clinic. The Veteran consistently reported no changes in vision with vision being 20/20 bilaterally with correction throughout the relevant period. The Veteran's periphery was indicated as flat and intact at 360 degrees. The Veteran was diagnosed with severe non-proliferative diabetic retinopathy with cotton-spot macular edema. During February 2009, the Veteran began a series of laser surgeries for his eyes due to his proliferative diabetic retinopathy. A September 2009 eye consult indicates that the Veteran's vision was correctable to 20/20 in each eye and he had a lack of visual field loss on confrontation field testing. The optometrist additionally indicated that the Veteran does not have any functional visual impairments which would render him unemployable. The Veteran had podiatry consults and feet exams at a VA facility every three months beginning in September 2005. The Veteran had a loss of dorsalis pedis pulses but had normal sensation of the feet and a normal visual examinations of the feet. The Veteran did complain of abnormal sensation at times and diabetic parethesias. The Veteran additionally had consults with an endocrinologist on a regular basis as well as regular visits with his primary care provider during the entirety of the relevant period. These records reveal uncontrolled diabetes with increasing amounts of insulin prescribed. The providers additionally expressed concern that they did not believe the Veteran was following an appropriate diet for his condition. Concerning the Veteran's erectile dysfunction, a March 2007 treatment note indicates that it was severe and multifactorial. Concerning the Veteran's peripheral neuropathy, a May 2007 endocrinology consult indicates that the Veteran's peripheral neuropathy was severe and that he was on medication to manage it. Additionally, the May 2007 endocrinology consult indicates that the Veteran's activity was most likely limited due to his peripheral neuropathy and he had absent deep tendon reflexes in the ankles. The Veteran was encouraged to exercise on a regular basis beginning in May 2007. The Veteran subsequently began walking three miles per day with his dog. A September 2007 treatment note indicates that the Veteran's deep tendon reflexes were absent at the ankles and he had a history of significant peripheral neuropathy. An October 2007 urology note indicates that the Veteran was able to get an erection for about an hour after a shot. The Veteran was afforded a Board hearing during December 2007. The Veteran testified that his diabetes was uncontrolled; his eyesight was stable and not an issue; he had no feeling in his right toes and little in his left toes; he couldn't stand for long periods of time or walk a long distance; and he had cramping in his lower extremities. The Veteran indicated that he had been working part-time as a security guard earlier that year but had not worked full-time in three years. The Veteran also indicated that all of his relevant treatment was at the VA Medical Centers. Additional VA treatment records indicate that during July 2008, the Veteran was walking barefoot on the beach and got a small sore with subsequent treatment for a foot ulcer. A May 2009 treatment note addendum indicates that the Veteran was working. An examiner additionally indicated during August 2009 that the Veteran had painful diabetic neuropathy. The Veteran was afforded additional VA examinations during September 2009. The examiner indicated that the Veteran was initially treated for diabetes with oral agents and a diabetic diet; with insulin being prescribed the prior two years. The examiner indicated that his current treatment included a diabetic diet, oral agents, and regular insulin. The examiner also reported that the Veteran had two hypoglycemic episodes during the prior five years which had not required hospitalization; he had not been hospitalized for diabetes control; and he had no activity restrictions placed on him due to his diabetes. The examiner indicated that the Veteran had significant peripheral neuropathy which was initially noted as numbness; with current symptoms being loss of sensation in the feet, cramps, pain in the calves, paresthesias and pins and needles in the lower extremities. He had one skin ulceration which was fully healed. At times, the Veteran had a flare of neuropathy symptoms with increased burning pain and cramps if he stood on a hard surface for one hour or more. The Veteran indicated he could walk one to one and a half miles with rest periods. The Veteran additionally noted that he could get an erection with an injection directly into his penis. The examiner indicated that there was no penile deformity. The Veteran's right pedal pulses, dorsalis pedis and posterior tibial were 2+; left dorsalis pedis and posterior tibial were 1+; feet were slightly cool but there was good capillary filling present; there were no open skin areas in the lower extremities or feet; slight redness was present over both pretibial areas with a few excoriations with no signs of inflammation or redness; motor testing was 5/5 in all major muscle groups in the upper extremities; and lower extremities gross muscle strength was 4/5. The Veteran's sensory exam revealed absent sensation to a filament on the plantar surfaces of both feet; soft touch was diminished over the dorsum of the feet and toes as compared to the more proximal extremities and upper extremities; vibratory sense was diminished in the lower extremities when compared to the upper extremities over the bony prominences; position sense was diminished bilaterally; reflexes, the right and left triceps, biceps and brachial radialis were all absent; bilateral knee and ankle reflexes were zero. The examiner concluded that the Veteran's neuropathy was significant sensory neuropathy involving all distal branches of the sciatic nerves, bilaterally. Regarding the issue of paralysis, the Veteran had incomplete paralysis of a mild degree as he had only mild muscle weakness in the lower extremities and there was no sign of muscular atrophy or other severe effects of the muscular system. The examiner additionally indicated that the Veteran's diabetes with complications would have a significant effect on his ability to stay employed in that he would have very little endurance. The Veteran was additionally administered a VA eye examination during September 2009. The Veteran's vision was 20/20 corrected; ocular motilities were full and extensive; confrontation fields were full to finger counting; and pupils were equal, round and responsive. There was a small corneal scar in the right eye; the cornea in the left eye was clear, and trace nuclear sclerotic cataracts were present in the eyes. The examiner indicated that the Veteran's diabetes had resulted in proliferative diabetic retinopathy bilaterally with 20/20 correctable vision in each eye and a lack of visual field loss; additionally indicating that the Veteran did not have any functional visual impairments which would render him unemployable. A January 2009 private treatment note indicates the Veteran was still walking a lot. The Board finds that the preponderance of the evidence indicates that the Veteran's diabetes mellitus does not warrant a higher rating considering the entirety of the claims period. In this regard, the Board notes that the Veteran's activities have not been regulated and in fact his medical providers have urged greater physical activity for his health; the Veteran does not have a loss of vision or any complaints concerning the quality of his vision or decreased peripheral vision during any part of the relevant period; and the Veteran does not have a penile deformity. The Board notes that the Veteran was granted special monthly compensation for his erectile dysfunction during December 2004. Thus, the Veteran's diabetes mellitus does not warrant a higher rating. The Board additionally finds that the preponderance of the evidence indicates that the Veteran's peripheral neuropathy in each lower extremity warrants an increased evaluation to 20 percent during the period of the claims prior to September 15, 2009. In this regard, the Board notes that in the Veteran's claim for an increased rating, he indicated that he could not stand for very long as his feet were worsening. However, a January 2006 letter from his private physician indicated that the Veteran had stated he did not have numbness or tingling in the right lower extremity. Additionally, the Board notes that a May 2007 endocrinology consult indicated that the Veteran's activity was most likely limited due to his peripheral neuropathy; he had been placed on medication for his peripheral neuropathy; and his peripheral neuropathy was severe with absent deep tendon reflexes in the ankles. However, although this examiner characterized the Veteran's peripheral neuropathy as severe, there is no paralysis or muscular atrophy noted at any time. The Board additionally notes that the Veteran began an exercise program during the claims period and he consistently indicated to providers that he was walking three miles per day. The September 2009 VA examiner indicated that the Veteran had incomplete paralysis of a mild degree as he had only mild muscle weakness in the lower extremities. Thus, the Board finds that the Veteran's bilateral lower extremity peripheral neuropathy warrants 20 percent ratings prior to September 15, 2009. However, as the Veteran's peripheral neuropathy has been characterized as mild by the September 2009 examiner and treatment records do not show paralysis or muscular atrophy at any time, the Board concludes that the impairment in each lower extremity more nearly approximates moderate than moderately severe. Accordingly, a rating in excess of 20 percent is not warranted for either disability during any portion of the claims. As a result of the Board's decision herein, the Veteran has met the minimal scheduler criteria for a total rating based on unemployability throughout the period of this claim. In this regard, the Board notes that the Veteran's service-connected coronary artery disease, which is rated as 30 percent disabling, and his service-connected diabetes mellitus and peripheral neuropathy of the lower extremities are all of common etiology. The combined rating for the disabilities of common etiology is 70 percent. The Board additionally finds that the Veteran credibly maintained on a statement received at the RO during February 2006 that his physician had failed him on his Department of Transportation physical. The Board notes in this regard that the Veteran had been employed as a truck driver. Thus, the Board is satisfied that the Veteran's service-connected disabilities have been sufficient by themselves to render him unemployable throughout the period of the claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased rating for diabetes mellitus, type II with retinopathy and erectile dysfunction is denied. The Board having determined that the peripheral neuropathy of the Veteran's left lower extremity warrants a 20 percent rating, but not higher, throughout the period of the claim, the benefit sought on appeal is granted to this extent and subject to the criteria governing the award of monetary benefits. The Board having determined that the peripheral neuropathy of the Veteran's right lower extremity warrants a 20 percent rating, but not higher, throughout the period of the claim, the benefit sought on appeal is granted to this extent and subject to the criteria governing the award of monetary benefits. Entitlement to a total rating based on unemployability due to service-connected disabilities during the period of the claim prior to September 15, 2009, is granted, subject to the criteria governing the award of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs