Citation Nr: 1131237 Decision Date: 08/25/11 Archive Date: 09/07/11 DOCKET NO. 07-32 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating for diabetes mellitus, Type II, with nephropathy and erectile dysfunction, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to November 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for an increased rating for diabetes mellitus. The Veteran was scheduled to testify at a hearing before a Veterans Law Judge in November 2009, but failed to report for it. The Board deems his request for a hearing to be withdrawn. See 38 C.F.R. § 20.704(d) (2010). FINDING OF FACT Type II diabetes mellitus requires Insulin, but it does not result in the regulation of activities. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for Type II diabetes mellitus with nephropathy and erectile dysfunction 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 Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant 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 a veteran of what information or evidence is necessary to substantiate the claim; 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, the 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 October 2006 and January 2009 letters, the RO provided notice to the Veteran regarding what information and evidence are needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In addition, a September 2008 letter informed the Veteran of the criteria required for a higher rating for his service-connected diabetes mellitus. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The October 2006 and January 2009 letters also advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. The Veteran was also informed of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include private and VA medical records, and VA examination reports. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing argument. Thus, the Veteran has been 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 notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits as to the issues decided herein. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant'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 appellant 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board acknowledges that a claimant may experience multiple degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent evaluation. 38 C.F.R. § 119, Diagnostic Code 7913. A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. Evaluate compensable complications of diabetes 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, Diagnostic Code 7913 and Note 1 The RO granted service connection for diabetes mellitus type II in December 2005. By rating action dated July 2007, the RO granted service connection for coronary artery disease as being associated with the service-connected diabetes. A May 2008 rating decision granted service connection for diabetic neuropathy of each lower extremity, and for diabetic nephropathy, with each disability being associated with diabetes. Finally, a July 2009 rating action granted service connection for erectile dysfunction. The Board notes that since diabetic nephropathy and erectile dysfunction are noncompensable, these disabilities have been evaluated as part of the service-connected diabetes mellitus. The Veteran is in receipt of special monthly compensation based on loss of use of a creative organ. The Veteran has not alleged that diabetic nephropathy or erectile dysfunction warrant increased ratings. The evidence supporting the Veteran's claim includes his statements and some of the medical findings of record. VA medical records establish the Veteran is on Insulin for diabetes mellitus. It has been reported on some visits that diabetes is in poor control. The October 2006 VA examination shows he was also on a restricted diet due to diabetes. It was noted in February and March 2008 that the Veteran had diabetic nephropathy based on elevated microalbumin. The evidence against the Veteran's claim includes the medical findings of record. As noted above, in order to assign a higher rating, the record must demonstrate that diabetes mellitus has resulted in regulation of the Veteran's activities. No such evidence has been shown in this case. In fact, the evidence of record shows that there is no regulation of activities. For example, when he was examined by the VA in October 2006, he had no complaints or symptoms referable to diabetes. He had no episodes of hypoglycemia or ketoacidosis. It was specifically indicated his activities were not restricted because of diabetes mellitus. The assessment was type II diabetes mellitus without evidence of end organ damage. The examiner pointed out that laboratory data revealed the Veteran had some microalbuminuria, but noted his serum creatinine was within normal limits. He commented the Veteran likely had some disease of his basement membrane, but his glomerular filtration rate was normal. In November 2007, a VA physician acknowledged that the Veteran had diabetic neuropathy, coronary disease and microalbuminuria. He noted, moreover, that the diabetes mellitus required insulin and a restricted diet. The Board points out there were options on the form completed by the physician to indicate the severity of diabetes included the regulation of activities, but he did not check that box. Thus, the Board finds as fact that the examiner found the Veteran's symptoms of diabetes mellitus did not warrant regulation of activities. When examined by the VA in March 2008, the Veteran denied erectile dysfunction. The examiner noted that when he was seen in October 2007, there was no diabetic retinopathy. There was no issue as to hypoglycemia or ketoacidosis. The examiner specifically stated the Veteran's activities of daily living were not at all restricted by the treatment of diabetes. The Veteran did not have diabetic foot or skin disease. Nor did he have diabetic gastrointestinal tract or genitourinary disease. It was stated he did not have kidney disease inasmuch as serum creatinine was within normal limits. The most recent VA examination for diabetes mellitus was conducted in June 2009. It was again indicated there had been no hypoglycemic or ketoacidotic events. The examiner stated the Veteran's activities were not restricted to maintain glycemic control. The Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the severity of his service-connected diabetes mellitus. As noted above, the record documents multiple times that the Veteran's activities are not restricted due to diabetes, which is a symptom that must be shown to warrant a 40 percent evaluation. In sum, there is no basis on which an increased rating may be assigned. The Board has also considered whether the Veteran's service-connected diabetes mellitus with nephropathy and erectile dysfunction 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 extra-schedular ratings 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 perfectly describe the Veteran's disability levels and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the above conclusion, 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) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An increased rating for diabetes mellitus type II is denied. ____________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs