Citation Nr: 1126109 Decision Date: 07/12/11 Archive Date: 07/19/11 DOCKET NO. 10-01 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type I. 2. Entitlement to an initial, compensable rating for headaches. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney ATTORNEY FOR THE BOARD A. L. Tarr, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2002 to March 2008. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the Winston-Salem, North Carolina RO granted service connection for diabetes mellitus, type I, and for headaches and assigned initial ratings of 20 percent for diabetes mellitus and 0 percent (noncompensable) for headaches, both effective March 17, 2008. In March 2009, the Veteran filed a notice of disagreement (NOD) with the assigned disability ratings. A statement of the case (SOC) was issued in December 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later in December 2009. Because the appeal involves disagreement with the initial ratings assigned following the grant of service connection for diabetes mellitus and headaches, the Board has characterized these matters in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. However, in a correspondence received in November 2010, the Veteran cancelled his hearing request. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in Hartford, Connecticut, which has certified the appeal to the Board. In November 2010, the Veteran's representative submitted additional medical evidence directly to the Board, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2010). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claims on appeal have been accomplished. 2. Since the March 17, 2008 effective date of the grant of service connection, the collective medical evidence reflects that the Veteran's diabetes mellitus, type I, has required insulin, restricted diet, and regulation of activities, but has not caused any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. 3. While the Veteran has reported yearly headaches since the March 17, 2008 effective date of the grant of service connection, there is no evidence or allegation of prostrating attacks averaging one every two months. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an initial, 40 percent, but no higher, rating for diabetes mellitus are 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, 4.7, 4.119, Diagnostic Code 7913 (2010). 2. The criteria for an initial, compensable rating for headaches are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.20, 4.27, 4.3, 4.7, 4.20, 4.31, 4.124a, Diagnostic Code 8100 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. The Board recognizes that the Veteran has not been furnished VCAA-compliant notice specific to claims for higher ratings following the grant of service connection for diabetes mellitus and headaches. In this case, however, the Board notes that the lack of such notice is not shown to prejudice the Veteran, in part, given the notice that has been provided. In this regard, a pre-rating letter of record explained the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The December 2009 SOC set forth the criteria for higher ratings for diabetes mellitus and headaches. Further, the Veteran has not shown any prejudice due to the lack of notice regarding what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. In fact, the Veteran has continued to submit relevant evidence to support his claims for higher ratings. Moreover, the claims file reflects that the Veteran and his representative had actual knowledge of the information and evidence needed to support his claims for a higher rating. In this regard, in a November 2010 letter, the Veteran's representative explained that the Veteran's diabetes mellitus should be rated higher than 20 percent disabling. He noted that the Veteran required insulin, restricted diet, and regulation of activities; the criteria for a 40 percent rating. This statement demonstrates an awareness of what is necessary to support claims for higher ratings; hence the Board finds that any omission in the notice provided is harmless because actual knowledge of what the evidence must show to support the claims for higher ratings is shown. See, e.g., Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of service and VA treatment records, and the report of the January 2008 VA examination. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, by his service comrade, and by his representative, on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claims for higher ratings is warranted. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged ratings" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. A. Diabetes Mellitus The Veteran's diabetes mellitus, type I, is rated 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913 (2010). Under that diagnostic code, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated as 20 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated as 40 percent disabling. 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 rated, is rated as 60 percent disabling. 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 rated, is rated as 100 percent disabling. Considering the evidence of record in light of the above-noted criteria, and resolving all reasonable doubt in the Veteran's favor, the Board finds that an initial 40 percent, but no higher, rating for the Veteran's diabetes mellitus, type I, is warranted from the March 17, 2008 effective date of the grant of service connection. The Veteran underwent VA examination in January 2008. The Veteran reported a history of one hospitalization due to his diabetes mellitus in August 2007, when the disability was initially diagnosed. The Veteran reported that he stayed active at the gym. The examiner noted that the Veteran was able to sustain heavy physical activity without immediate distress. The examiner noted that the Veteran controlled his diabetes mellitus with insulin. The Veteran reported several occasions when he was unable to detect a significant drop in blood sugar. He denied any polydipsia, polyuria, or weight loss or gain. On examination, the Veteran was in no apparent distress. The veteran's pupils were within normal limits and cardiovascular, musculoskeletal, and neurological examinations were all normal. There was no impotence or other complications of diabetes mellitus noted. The impression was type I diabetes mellitus, under good control. VA treatment records reflect ongoing treatment for control and management of the Veteran's diabetes mellitus, type I. The Veteran was placed on a restricted diet and prescribed insulin. The treatment reports indicate that the Veteran experienced some episodes of hypoglycemia, however, no hospitalization was noted. No complications related to the Veteran's diabetes mellitus were reported. A February 2010 letter from Dr. Waris, the Veteran's VA physician, indicated that the Veteran was prescribed two insulin medications to control his blood sugar. He also stated that the Veteran suffers from hypoglycemia unawareness, noting that the Veteran does not recognize when his blood sugar is too low, a condition which may cause him to collapse or lose consciousness. Dr. Waris noted that the Veteran had to limit physical activities in order to maintain the proper blood glucose levels and cautioned that, due to the Veteran's hypoglycemia unawareness, he should not engage in physical activity alone. A July 2010 letter from C.G., the Veteran's service comrade, indicated that C.G. witnessed the Veteran collapse on several occasions due to hypoglycemia associated with the Veteran's diabetes mellitus. C.G. also reported a decline in the Veteran's physical capabilities following his diagnosis of diabetes mellitus. In November 2010, a physical evaluation board (PEB) was convened to consider the Veteran's diabetes mellitus. The report indicated that the Veteran was placed on the temporary disability retired list (TDRL) on March 17, 2008 due to his insulin dependent diabetes mellitus. The report noted that the Veteran had frequent episodes of "hypoglycemic unawareness" and was required to regulate his physical activities due to this condition. The Veteran was also placed on a specific carbohydrate, milk, and sugar free diet. The PEB concluded that the Veteran was physically unfit for service and recommended permanent disability retirement. The Veteran's condition was characterized as stable and determined to involve insulin dependence, restricted diet, and regulation of physical activities. A 40 percent disability rating was recommended. Collectively, the aforementioned medical evidence reflects that, since the March 17, 2008 effective date of the grant of service connection, the Veteran's diabetes mellitus, type I, has required insulin, a restricted diet, and regulation of activities. These symptoms are consistent with the criteria for a 40 percent disability rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913. As such, and with resolution of all reasonable doubt in the Veteran's favor, the Board finds that his diabetes mellitus, type I, meets the criteria for an initial 40 percent rating. However, at no point since March 17, 2008 has the Veteran's diabetes mellitus met the criteria for the next higher, 60 percent rating. As noted above, a 60 percent rating 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 rated. While the medical evidence reflects that the Veteran has occasional bouts of hypoglycemia, there is no evidence suggesting that the Veteran's hypoglycemic unawareness has resulted in hospitalization or frequent diabetic evaluation. The only indication of hospitalization was in August 2007, during service, at which time the Veteran was initially diagnosed with diabetes mellitus, type I. There is also no medical evidence of ketoacidosis or other complications from the Veteran's diabetes mellitus. Therefore, the criteria for a rating higher than 40 percent for diabetes mellitus, type I, are not met. As the criteria for the next higher, 60 percent, rating are not met, it follows that the criteria for an even higher rating (100 percent), likewise, are not met. Accordingly, the Board finds that an initial 40 percent, but no higher, rating for diabetes mellitus, type I, is warranted. B. Headaches In an April 2008 rating decision, the RO granted service-connection for headaches and assigned an initial 0 percent (noncompensable) disability rating under 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Thus, the Veteran's headaches have been rated, by analogy, under the criteria for evaluating migraine headaches. See 38 C.F.R. § 4.20. Under Diagnostic Code 8100, a 10 percent rating is warranted for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. Migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months warrant a 30 percent rating. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating schedule, nor the Court of Appeals for Veterans Claims, has defined "prostrating". According to Stedman's Medical Dictionary, 27th Edition (2000), pg. 1461, prostration is defined as "A marked loss of strength, as in exhaustion." Considering the pertinent evidence in light of the above-noted legal authority, the Board finds that a compensable rating for the Veteran's headaches, is not warranted at any time since the effective date of the award of service connection. The service treatment records reveal treatment for a headache on one occasion in October 2007. The Veteran underwent VA examination in January 2008. The Veteran reported a history of migraine headaches when he was younger. He reported that the headaches he now experiences are not as severe and occur approximately once per year. The Veteran noted that his current headaches do not usually interfere with his daily activities. The Veteran's last headache was approximately six months ago. The Veteran treated his headaches with over-the-counter pain medication. The examiner noted no recent treatment for headaches. On examination, the Veteran's head, ears, nose, and throat were within normal limits and there was no tenderness noted over the sinuses. Neurological examination was also normal. The impression was headaches. The VA treatment records do not reflect any evaluation or treatment for headaches. As noted above, to warrant a compensable rating for headaches under Diagnostic Code 8100, there must be evidence of characteristic prostrating attacks averaging one in 2 months over the last several months. In this case, the Veteran has reported headaches only occurring once per year and there is no evidence of prostrating attacks. Accordingly, the Board finds that an initial, compensable rating for headaches is not warranted. C. Both Claims The Board reiterates that it has considered the Veteran's assertions, as to his diabetes mellitus and headache symptomatology-which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings for diabetes mellitus and for headaches requires medical findings which are within the province of trained medical professionals. See Jones, 7 Vet. App. at 137-38. Hence, while the appellant's complaints have been considered, they are not considered more persuasive on these points than the objective medical findings which, as indicated above, do not support assignment of a rating higher than 40 percent for diabetes mellitus or a compensable rating for headaches. Moreover, the Veteran has not reported any symptomatology that would warrant a higher rating for either disability under consideration. For the foregoing reasons, the Board concludes that, while the record supports assignment of an initial 40 percent rating for diabetes mellitus, there is no basis for staged rating of either disability, pursuant to Fenderson, and that a rating higher than 40 percent for diabetes mellitus and an initial, compensable rating for headaches must be denied. The Board has applied the benefit-of-the doubt doctrine in determining that the criteria for an initial 40 percent rating for diabetes mellitus are met, but finds that the preponderance of the evidence is against assignment of any higher rating for that disability or for an initial, compensable rating for headaches. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial 40 percent rating for diabetes mellitus, type I, is granted, subject to the legal authority governing the payment of VA compensation. An initial, compensable rating for headaches is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs