Citation Nr: 1040366 Decision Date: 10/27/10 Archive Date: 11/01/10 DOCKET NO. 09-00 150A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased initial rating for type II diabetes mellitus, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for hypertension (claimed as a heart condition), to include as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for type II diabetes mellitus and denied service connection for hypertension. A 20 percent evaluation was assigned for diabetes. The Veteran disagreed with that evaluation and the denial of service connection for hypertension. In January 2009, the Veteran requested a video conference hearing before a Veterans Law Judge of the Board. See 38 C.F.R. §§ 3.103(c)(1); 20.700(a) (2010). The hearing was scheduled for July 26, 2010. However, the Veteran failed to appear for such hearing. Thus, the Board deems the Veteran's request for such a hearing to be withdrawn. See 38 C.F.R. § 20.704 (2010). The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify you if further action is required on your part. FINDING OF FACT The Veteran takes oral medication for diabetes mellitus, but is not required to regulate his activities. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 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. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claims; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, preadjudication VCAA notice was provided in a December 2007 letter, which advised the Veteran of what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In any event, the Veteran's claim for a higher initial rating arises from the initial grant of service connection for diabetes mellitus. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2010). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, VA treatment records and examination reports, and lay evidence. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis 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 (West 2002); 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 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 (2010); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2010); 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 (2010); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2010). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to a higher initial disability rating for diabetes mellitus. Such disability has been rated under 38 C.F.R. § 4.119, Diagnostic Code 7913 as 20 percent disabling from November 8, 2007. Under Diagnostic Code 7913, a 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent evaluation is warranted for 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 evaluated. A 100 percent evaluation is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Turning to the evidence, the Veteran was first diagnosed with diabetes mellitus in September 2007 when he was hospitalized for a stroke. Upon discharge from the VA Medical Center (VAMC), the Veteran was prescribed oral medication for treatment of his diabetes and was placed on a restricted diet. The Veteran underwent a VA examination for diabetes mellitus in March 2008. On that occasion the examiner noted that his treatment consisted of oral medication. The examiner further indicated that the Veteran was not on a restricted diet at that time, and it does not appear that the Veteran was ever treated with insulin for this condition. The Veteran denied any episodes of ketoacidosis or hypoglycemic reaction or hospitalization for such. VA outpatient treatment records reveal that in October 2008 the Veteran reported that he was regularly exercising through walking or manual labor. In March 2009 the Veteran said that he was feeling good and had no complaints. In August 2009, the Veteran reported that he was not checking his sugars. On this occasion the Veteran was advised to continue his exercise program and to lose weight. Medication lists include Metformin tablets twice a day. In a January 2009 statement, the Veteran's wife described their daily activities and how she assists the Veteran. The statement was not specific to symptoms attributed to his diabetes. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's diabetes mellitus is appropriately evaluated as 20 percent disabling. Initially, the Board notes that the Veteran is in receipt of separate compensable ratings for peripheral neuropathy of the lower extremities as secondary to his service-connected diabetes mellitus. Thus, symptoms associated with those disabilities cannot be considered in determining the appropriate evaluation for his diabetes. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). As outlined above, in order to warrant an evaluation in excess of 20 percent under Diagnostic Code 7913, the evidence must show that treatment for diabetes mellitus requires insulin, restricted diet, and regulation of activities. Here, the objective medical evidence of record shows that the Veteran's treatment for his diabetes mellitus is medication and possibly diet. The evidence does not reflect that any regulation of activities is required to control his diabetes. In fact, the evidence indicates the Veteran exercises and is encouraged to do so. Such does not reflect that he must avoid strenuous occupational and recreational activities due to his diabetes. Thus, a rating in excess of 20 percent is not warranted. In summary, based upon the competent evidence of record, the Board concludes that the Veteran's diabetes mellitus has been adequately addressed by the 20 percent evaluation already assigned. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (2010). Therefore, the Board finds that the preponderance of the evidence is against the claim for an initial disability rating in excess of 20 percent at any time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the Veteran's diabetes mellitus disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial disability rating in excess of 20 percent for type II diabetes mellitus is denied. REMAND After a review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for hypertension. Turning to the evidence, service treatment records reflect that at the Veteran's pre-induction examination in February 1968, his blood pressure was 164/88. The Veteran was monitored once for the following three consecutive days, with his blood pressure being checked once in the morning and once in the evening. The results were as follows: Date Morning Night February 27, 1968 142/64 150/68 February 28, 1968 130/78 136/72 March 1, 1968 140/72 144/80 No diagnosis was provided. On the March 1970 separation examination the Veteran responded affirmatively to high or low blood pressure on the Report of Medical History. The examiner stated that the Veteran had a history of high blood pressure on his pre-induction examination, but that the Veteran was not prescribed medication and that it was normal at this examination. In September 2007 the Veteran presented at the Gainesville VAMC stating that he was found by his wife six days earlier on his bedside floor unable to walk or speak. Upon being admitted to the VAMC, the Veteran was unable to walk without assistance and his speech was garbled. Upon further examination, the Veteran's blood pressure was noted to be 225 systolic. It was on this occasion that the Veteran was diagnosed with type II diabetes mellitus. The Veteran reported that he had a headache but that he thought it was due to high blood pressure. The Veteran further stated that while he was made aware of his high blood pressure upon being drafted into the military, that he had not been to see a doctor in the past 30 years. However, he further stated in his March 2008 VA examination that approximately 10 to 15 years prior, he was seen by private physician, Dr. Schultz, in regards to his high blood pressure before a tooth extraction could be performed. The physician cleared the Veteran for his tooth extraction, but the Veteran failed to do any follow up in regards to his high blood pressure. The Board notes that the medical records from Dr. Schultz have not been requested and are not associated with the claims file. At the Veteran's March 2008 VA examination, the examiner stated that because the Veteran's hypertension predates the diagnosis of his diabetes mellitus, his hypertension is not caused by or related to his type II diabetes mellitus. The examiner did not, however, provide a medical opinion as to whether the Veteran's diabetes mellitus may have aggravated his hypertensive beyond normal progression. Thus, a VA examination with opinion should be obtained upon remand. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide a properly competed authorization form for Dr. Schulz so that VA can request the treatment records from that provider. After securing the necessary release, the RO/AMC should obtain these records and associate them with the claims file. 2. Schedule the Veteran for a VA hypertension examination to determine the current nature of his hypertension, and to obtain an opinion as to whether such disability is aggravated by his service connected diabetes mellitus. The claims folder must be made available to and be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current hypertension was permanently worsened beyond normal progression (aggravation) by the Veteran's service-connected diabetes mellitus. If aggravation is shown, the examiner should attempt to quantify the degree by which the diabetes worsens the hypertension. A rationale for all opinions expressed should be provided. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs