Citation Nr: 1124792 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 07-39 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to an initial compensable disability rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the above-referenced Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II, requires insulin and a restricted diet but does not necessitate the regulation of activities. 2. Since March 16, 2007 (the effective date of service connection), the Veteran's hypertension has required continuous medication and has been manifested by diastolic readings of primarily 100 or below and systolic readings below 160; diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more is not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2010). 2. Since March 16, 2007 (the effective date of service connection), the criteria for an initial disability rating of 10 percent, and no higher, for hypertension have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, DC 7101 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In letters dated in March 2007, December 2007, and May 2008, the RO informed the Veteran of its duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice in an increased rating claim need not be "veteran specific"). These letters also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. The May 2008 correspondence in particular notified the Veteran of the type of evidence that may reflect a worsening of his service-connected diabetes and hypertension, including the nature and symptoms of the condition, the severity and duration of the symptoms, specific test or measurement results, on-going treatment records, and statements from people who have witnessed how the claimed disability affects him. Further, the timing defect of the December 2007 and May 2008 correspondence was cured by the RO's subsequent readjudication of both increased rating claims and issuance of supplemental statements of the case, most recently in June 2008. Thus, the Board concludes that all required notice has been given to the Veteran. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds VA has satisfied its duty to assist the Veteran in the development of the claims adjudicated herein. His in-service and pertinent post-service treatment reports are of record, and the RO obtained a VA examination in April 2007. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained in this case is more than adequate, as the examiner considered all of the pertinent evidence of record, including the Veteran's statements, and provided a complete rationale for the opinion, relying on and citing to the records reviewed. The examiner also addressed the rating criteria pertinent to the Veteran's service-connected diabetes mellitus and hypertension. The Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Thus, the Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims on appeal. 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); & Quartuccio v. Principi, supra. II. Law and Analysis for Increased Rating Claims Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). See also, Fenderson v. West, 12 Vet. App. 119 (1999). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In this case, the Veteran contends that his service-connected diabetes mellitus and his service-connected hypertension are more disabling than their current disability ratings reflect. A. Diabetes Mellitus The Veteran's diabetes mellitus has been rated as 20 percent disabling under DC 7913. See 38 C.F.R. § 4.119 (2010). A 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of 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 evaluated separately. 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 evaluated, warrants a 100 percent evaluation. Id. In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) (emphasis added). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under DC 7913. Note 1 following 38 C.F.R. § 4.119 (2010). Here, the record shows that the Veteran is in receipt of service connection, and separate evaluations for complications for diabetes mellitus; i.e., erectile dysfunction. In connection with the Veteran's recent claim for increase is an April 2007 VA examination report, which shows that he reported starting insulin to control his diabetes in April 2005. His current medications include Novolin 18 units in the morning along with Novolog 12 units and Symlin 20 units at noon, Novolog 7-8 units and Symlin 20 units in the evening, Novolog 10 units, Symlin 20 units, and Novolin 20 units at bedtime. His blood sugars have been in the 150s to 180s. During early February, the Veteran's hemoglobin A1C was 9.6, dropping to 8.3 some 20 days later. He reported one recent episode of hypoglycemia of 61. He has had no ketoacidotic reactions and has not been hospitalized for either ketoacidosis or hypoglycemic reactions. Prior to his episode of hypoglycemia it had been at least a year since he had any problems. The Veteran followed a restricted calorie count of 1500-2000 calories and reported an 8 pound weight loss. The was no restriction on his activities secondary to his diabetes. He walked three miles a day and was in the gym 2-3 times per week. He was seen by his diabetic care provider every 2-3 months. The Veteran denied any history of retinopathy or nephropathy. He also had no symptomatology relating to neuropathy including numbness, tingling, or weakness. With the exception of nocturia 1-2 times at night he denied any significant bowel or bladder problems. On examination the Veteran's gait was unremarkable with no ankle edema, hepato jugular reflex (HJR), or jugular venous distension noted. Examination of his feet revealed no cracks, callosities or fungal infection. Sensation to light touch with monofilament testing was negative bilaterally and dorsalis pedis and posterior tibial were both 2+ out of 4. There were no skin problems or ankle/knee instability noted. The Veteran's most recent blood sugar in March 2007 was 157. VA outpatient treatment records dated from 2009 to 2010 show ongoing evaluation of the Veteran's blood sugar levels with no restriction of exercise or activities. An endocrinology note dated in October 2007 shows that the Veteran denied any specific problems concerning his diabetes, but did complain of hip pain, which limited his activities. The examiner concluded that the hip pain was probably mulifactorial due to a combination of degenerative joint disease, muscle-related side effects from statin medications used to control cholesterol, or a Vitamin D deficiency. A subsequent entry dated two weeks later shows that the Veteran reported a 100 percent improvement in hip pain after discontinuing his cholesterol medication. By late November 2007 the Veteran's hip pain had returned with the introduction of a new cholesterol medication. An entry dated in March 2008 shows the Veteran's A1C was 7.1, which was the best reading he had in a few years. The clinical impression was type 2 diabetes mellitus borderline controlled at the present time. In May 2008, the Veteran was evaluated for multiple joint pain, involving the right shoulder, right hip, neck, feet, and ankles. He noted that since discontinuing the statin medication the pain was tolerable, but the right hip remained painful. X-rays showed some acromioclavicular joint degenerative joint disease of the right shoulder and advancing degenerative joint disease of the right hip. The Veteran was encouraged to walk and continue his program, but it was noted that he would need a total hip replacement in the future. The most recent entry dated in June 2008, shows the Veteran reported that he was no longer as active as he had previously been because of chronic health conditions including diabetes mellitus. He stated that he used to walk 2 miles, but now was only able to walk for about 10 minutes before having to stop. It was recommended that the Veteran modify his activity based on physical pain. The examiner indicated that when experiencing pain the Veteran should stop/modify his activities to meet his physical needs, however he should continue to be as active as his pain allows. The pertinent evidence in conjunction with the applicable law and regulations, shows that, for the most part, the criteria for the 20 percent and 40 percent levels are similar, except for the determination as to whether diabetes requires regulation of activities. Here, the Veteran's diabetes mellitus requires him to be on insulin and a restricted diet, which warrants the current 20 percent evaluation under DC 7913. However, the record does not reflect that the Veteran requires a regulation of activities. Neither the 2007 VA examination nor outpatient treatment evaluations, completed during the current appeal, have indicated that a doctor has determined that regulation of activities (avoidance of strenuous occupational and recreational activities) is medically required as necessary for a 40 percent disability rating. Also, in the absence of episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice a month visits to a diabetic care provider, the Board finds no basis for a rating in excess of 20 percent under DC 7913. The only other evidence submitted in support of the claim consists of lay statements and the Veteran's contentions. He asserts that his regulation and restriction of physical activities is evidenced by the June 2008 medical statement reflecting his need to modify his activities based on pain management. He contends that any strenuous activity is controlled by blood sugar readings, right foot numbness, hip joint weakness and pain, lower extremity weakness, and reduced energy levels. He maintains that all of these factors regulate his activity levels and are related to his worsening diabetes. However, the evidence of record indicates the Veteran's physical limitations are unrelated to his diabetes. While the Veteran has reported subjective problems with multiple joint pain, VA examiners have consistently attributed this symptom to degenerative joint disease and as a side effect associated with cholesterol medications. The competent (medical) evidence, including the 2007 VA opinion, does not show that at any time during the appeal period the Veteran has been instructed by his health care provider to restrict his activities due to his diabetes. Indeed, the June 2008 examiner encouraged the Veteran to continue physical activity as tolerated. Based on this evidentiary posture, the Board finds that the Veteran's argument that he modified his activity due to his physical pain does not amount to medical restriction of activity associated with the severity of his diabetes as required by DC 7913. Camacho supra. Inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, the Veteran's contentions do not suffice to assign a higher rating for his service-connected diabetes mellitus. Accordingly, the Board concludes that the preponderance of the evidence is against this increased rating claim. There is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 2002). B. Hypertension In April 2007, the RO granted service connection for hypertension and a noncompensable evaluation was assigned under DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). The Veteran expressed his disagreement with the evaluation assigned. Under DC 7101, a 10 percent evaluation is warranted for diastolic pressure predominately 100 or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability evaluation requires diastolic readings of predominantly 110 or more or; systolic readings of 200 or more. A 40 percent disability evaluation required diastolic readings of predominantly 120 or more. A 60 percent disability evaluation required diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104 (2010). In support of the Veteran's claim is an April 2007 VA examination report. At that time, the Veteran reported a history of hypertension since 1969. He denied any symptomatology, including congestive heart failure, epicarditis, or pericarditis. He was taking hydrochlorthiazide and Lisinopril daily with no indication of side effects and no functional impairment. Blood pressure readings were 140/68, 140/66, and 142/68. Also of record are VA and private outpatient treatment records dated between 1998 and 2008, which show numerous systolic readings ranging from 118 to 179 and diastolic readings ranging from 56 to 82. While there were no diastolic readings at 100 or above there were at least four occasions where the Veteran's systolic pressure was 160 or over. (See results from VA Cumulative Vitals/Measurements report for September 2004 and April 2006 as well as VA outpatient treatment records dated in June 2006 and May 2008). In addition, these records show that the Veteran began the antihypertensive medications to control his blood pressure in January 2005. Accordingly, in light of this evidentiary posture, the Board finds that the Veteran's service-connected hypertension warrants a 10 percent evaluation, but no higher. Throughout the appeal period, diastolic blood pressure readings were clearly below 100, and, while there were 4 systolic readings at 160 or more, the majority of the readings discussed above were below 160. However, it is also clear that, during the course of this appeal, the Veteran's hypertension has required continuous treatment with medication. While this evidence supports the grant of a 10 percent rating for the Veteran's hypertension, a higher evaluation is not warranted. In this regard, the Board notes that a 20 percent evaluation is not warranted because the Veteran does not have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, on any VA examination or outpatient treatment record. Resolving all reasonable doubt in favor of the Veteran, the Board finds that, in light of the reported systolic readings and because the hypertension has required continuous treatment with medication, it more nearly approximates the degree of impairment contemplated by a 10 percent disability rating under DC 7101. 38 C.F.R. § 4.7. C. Extraschedular Consideration & Conclusion Finally, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected diabetes mellitus and hypertension with the established criteria found in the rating schedule for those disabilities. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for each the Veteran's service-connected disabilities on appeal, but the required manifestations have not been shown in this case. Moreover, there is no evidence that any of the service-connected disabilities on appeal required hospitalization at any time during this appeal, and VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Therefore, the Board finds that there is no evidence to show that the application of the regular rating schedule is impractical. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has carefully considered the Veteran's contentions in making this decision. However, inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, his assertions do not suffice to assign higher ratings for his diabetes mellitus and hypertension. The current levels of disability shown are encompassed by the ratings assigned and, with due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted for any portion of the time period under consideration. In reaching this determination, the Board has considered the applicability of staged ratings under Hart, supra. See also Fenderson v. West, supra. Lastly, the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). The holding of Rice is inapplicable here because the evidence of record does not demonstrate that the Veteran has been rendered unemployable due solely to his service-connected diabetes mellitus and hypertension, nor has he so contended. Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disabilities, and the issue of entitlement to a TDIU need not be addressed any further. ORDER A disability rating in excess of 20 percent for diabetes mellitus is denied. Effective March 16, 2007, a 10 percent disability rating, but no higher, for hypertension is granted, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs