Citation Nr: 1121090 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 04-24 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York ISSUE Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active military service from July 1967 to June 1969. The appeal originally comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision rendered by the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for Type II diabetes mellitus on a presumptive basis and assigned an initial 20 percent rating, effective August 19, 2003. Thereafter, the Veteran perfected an appeal as to the initial evaluation assigned for his service-connected diabetes mellitus. The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. See Fenderson v. West, 12 Vet. App. 119 (1999). On two separate occasions in August 2007 and July 2009, the Board remanded the appeal for additional development. The claim was denied by the Board in June 2010, and appealed by the Veteran. Thereafter, in March 2011, pursuant to a memorandum decision, the United States Court of Appeals for Veterans Claims (Court) set aside the Board's decision to deny the Veteran's claim for entitlement to an initial rating in excess of 20 percent for diabetes. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. Competent medical evidence demonstrates that diabetes mellitus has been controlled with oral hypoglycemic medication, a restricted diet; however, there is no evidence of insulin medication or any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, or any separate compensable complications of diabetes and no regulation of his activities . CONCLUSION OF LAW The criteria for an initial 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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court), are applicable to this appeal. The Veteran's claim for service connection for diabetes mellitus was received in September 2003. He was notified of the general provisions of the VCAA in correspondence dated in January 2004 and August 2007. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his service connection claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in December 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). During the pendency of this appeal, the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VA must notify the Veteran as to how it determines the disability rating and effective date when a disability is found to be connected to service. An additional notice as to this matter was provided in August 2007. The claim for a higher initial evaluation for diabetes mellitus disorder is a downstream issue from the grant of service connection. The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, removing the sentence in subsection (b)(1) stating that VA will request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Subsection (b)(3) was also added and notes that no duty to provide § 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 38 C.F.R. § 3.159(b) (2010). The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records, VA treatment records, and private treatment records have been obtained and associated with his claims file. Furthermore, the Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2010) (Schedule). To evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2010). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. §§ 3.102, 4.3 (2010). In addition, where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2010). The Court has also held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board further acknowledges that a claimant may experience multiple distinct degrees of disability that might 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. 7913 Diabetes mellitus Rating 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 100 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 60 Requiring insulin, restricted diet, and regulation of activities 40 Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet 20 Manageable by restricted diet only 10 Note (1): 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. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2010) The term "regulation of activities" means that the appellant must avoid strenuous occupational and recreational activities. Id. Factual Background and Analysis The Veteran contends that his diabetes mellitus restricts his activities, and he, therefore, asserts that he is entitled to an initial rating in excess of 20 percent for diabetes mellitus. Private treatment records from F. L., M. D., dated from August 1992 to October 2003 revealed the first diagnosis of diabetes mellitus in August 2003. Treatment notes from September 4, 2003 showed that the private examiner prescribed Glucophage and Glucatrol and discussed the importance of diet and exercise for managing diabetes mellitus. Five days later, on September 9, 2003, Dr. F. L. wrote in a letter addressed to the Veteran's service representative that the Veteran's "activity" was restricted due to diabetes and fatigue. Later that same month, on September 18, 2003, the physician reported that the Veteran was doing a little more exercise and feeling good. There is no indication in either office note that the Veteran was instructed NOT to exercise. These private treatment records are also devoid of any reference to prescribed insulin. In the Veteran's notice of disagreement with the initial rating of 20 percent for his diabetes mellitus received in May 2004, he stated that F. L., M. D., his private examiner, had advised him to refrain from all strenuous activities. The Veteran also stated that he was told to get exercise on a regular basis with walks and casual activities; however, he was not to lift weights or run because these activities were now too strenuous. Additional private treatment records from F. L., M. D., dated from April 2000 to July 2006 showed continued treatment for diabetes mellitus but contained no references to regulation of activities or prescribed insulin. Private treatment records from L. R., M. D., dated from October 2006 to April 2008 showed treatment for diabetes mellitus but contained no references to any regulation of activities or prescribed insulin. In a VA diabetes mellitus examination report dated in April 2009, the Veteran reported that he was diagnosed with diabetes mellitus approximately five years ago. The examiner noted current medications as Metformin and Glipizide. The Veteran complained that diabetes mellitus restricted his activity and reduces his energy level in general. He denied any hospitalizations related to his diabetes and any hypoglycemic episodes. He reported that his diabetes was controlled by following a strict diet and by taking oral hypoglycemic agents. The objective findings included a diagnosis for diabetes mellitus type 2 and an opinion that the impairment caused by the Veteran's diabetes mellitus was due to the use of oral hypoglycemic agents and a restricted diet. In VA treatment records dated from May 2004 to July 2009, the Veteran consistently reported exercising regularly until June 2009, when he denied exercising regularly. During this same period, the Veteran was consistently advised to diet and exercise. The Veteran also was repeatedly encouraged to join the "MOVE" program (a national weight management/exercise program designed by VA) in order to reduce his weight and control his obesity, but he consistently declined. Finally, in VA treatment records dated from July 2009 to October 2009, the Veteran continued to be treated by Metformin and Glipizide. The Veteran also denied exercising regularly, but his treatment plan continued to include both weight loss and exercise. After careful review, the Board finds that the evidence does not support the assignment of an initial rating in excess of 20 percent for the Veteran's diabetes mellitus disability. In this case, the objective medical evidence shows that the Veteran's diabetes mellitus requires oral hypoglycemic agents, and some restrictions in his diet. However, the competent medical evidence of record does not reflect that the Veteran's diabetes mellitus requires insulin. Under Diagnostic Code 7913 the Veteran is entitled to a 20 percent disability rating for treatment with insulin or an oral hypoglycemic agent and a restricted diet. To be entitled to a 40 percent disability rating the Veteran must be treated with insulin as well as have restrictions on diet and exercise. Further, the Veteran has been routinely encouraged to exercise by medical authorities. The September 9, 2003 statement from Dr. F.L. noting a restriction in activities is in direct contradiction to his office notes of September 4 and 18, where the importance of exercise was discussed. Also, later records from Dr. F.L. are silent as to any restriction of activities. The Board also notes that there is no evidence that the Veteran has had those factors that are criteria for a rating higher than 40 percent (episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations for diabetic care, visits at least twice monthly to a diabetic care provider, etc.). As the criteria for the next higher rating (40 percent) for diabetes mellitus have not been met, it logically follows that criteria for an even higher rating (60 or 100 percent) likewise have not been met. For all the foregoing reasons, the claim for entitlement to an initial rating in excess of 20 percent for diabetes mellitus must be denied. The Board has considered staged ratings, under Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In addition, the evidence of record does not support the assignment of a separate compensable rating for any condition related to the Veteran's diabetes as there is no evidence that any such complication exists. See 38 C.F.R. § 4.229, Diagnostic Code 7913, Note (1) (2010). The Board also finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to this service-connected disability that would take the Veteran's case outside the norm so as to warrant the assignment of an extraschedular rating. Consequently, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs