Citation Nr: 1212800 Decision Date: 04/09/12 Archive Date: 04/19/12 DOCKET NO. 09-41 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to a compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from February 1969 to September 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board notes that the August 2007 rating decision also denied the appellant's claim for entitlement to service connection for erectile dysfunction and the appellant appealed the decision. Entitlement to service connection for erectile dysfunction was granted in a September 2009 rating decision. Thus, the issue is not before the Board. FINDINGS OF FACT 1. Throughout the rating period on appeal, the appellant's service-connected diabetes mellitus, type II, has not required insulin or regulation of activities. 2. Throughout the rating period on appeal, the competent clinical evidence of record indicates that the appellant's hypertension is manifested by a systolic pressure predominately less than 160 and a diastolic pressure predominately less than 100, with no history of a diastolic pressure predominately more than 100. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for diabetes mellitus have not been met during the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.119, Diagnostic Code 7913 (2011). 2. The criteria for a compensable evaluation for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, Diagnostic Code 7101 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011). The United States Court of Appeals for Veterans Claims (Court) held that 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C.A. § 5103(a). In VA correspondence to the appellant dated in August 2007, the appellant was informed of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. In addition, the appellant was informed of the criteria for establishment of a disability rating and an effective date. Hence, the timing of the VCAA notice was in compliance with Pelegrini v. Principi, 18 Vet. App. 112 (2004). Duty to Assist The Board concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the appellant with an appropriate VA examination in September 2006. The examination is adequate because it is based on a thorough examination, a description of the appellant's pertinent medical history, and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The appellant has not reported receiving any recent treatment specifically for these conditions and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The August 2006 VA examination report is thorough and supported by VA treatment records and provided findings pertinent to the rating criteria. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. General Legal Criteria Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2011). 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appellant's claims for increased evaluations were received on May 10, 2006. As such, the rating period on appeal is May 9, 2005. 38 C.F.R. § 3.400(o)(2) (2011). III. Diabetes Mellitus Rating Criteria The appellant's diabetes mellitus, type II, is currently assigned a 20 percent evaluation pursuant to Diagnostic Code 7913. Under Diagnostic Code 7913, a 10 percent rating is assigned for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. 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 evaluated. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2011). Regulation of activities is defined by Diagnostic Code 7913 as the 'avoidance of strenuous occupational and recreational activities.' Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Analysis A December 2005 VA treatment record reflects that the appellant's diabetes mellitus was well controlled and that there were no hypoglycemic symptoms on Glipizide and Metformin. Glipizide was decreased to 2.5 mg daily. The record indicates the appellant reported that he exercised regularly. An August 2005 VA examination report reflects that the appellant had diabetes mellitus, type II, with no activity restrictions. The report also reflects that the appellant was on a diabetic low-calorie, low-fat diet with no activity restrictions. He took Glipizide and Metformin for his diabetes mellitus. He had no complaints in regard to his diabetes mellitus. A June 2006 VA optometry consultation reflects that the appellant's eyes were evaluated. The appellant had cataracts, diabetes mellitus without retinopathy, and refractive error. Thus, the consultation indicates the appellant did not have any eye disabilities related to his diabetes mellitus. A September 2006 VA examination report reflects that the appellant was on a diabetic diet and took 5 mg of Glipizide daily and 500 mg of Metformin twice daily. It was noted as medical history that he had had no episodes of hypoglycemia or diabetic ketoacidosis requiring hospitalization. The Veteran reported that his diabetes mellitus was well controlled. He had no complaints with regard to his diabetes mellitus. There were no heart problems or urologic problems. He had early cataracts, but no diabetic retinopathy. Kidneys were normal. Peripheral pulses were palpable and present and equal. The appellant reported that he exercised regularly. The VA examiner found that the appellant had diabetes mellitus, type II, with no activity restrictions. The VA examiner noted that the disability was mild. An April 2007 letter from M.K., M.D., reflects that the appellant's conditions included noninsulin-dependent diabetes mellitus, hypertension, transverse myelitis and erectile dysfunction. His current medications were Glipizide, Enalapril, Felodipine and Cialis. A May 2007 VA treatment record reflects that the appellant had erectile dysfunction that was likely related to diabetes mellitus/hypertension. Another May 2007 VA treatment record indicated that the appellant was taking 5 mg of Glipizide daily. The attending physician noted that his diabetes mellitus was well controlled. He was instructed to continue taking 5 mg of Glipizide daily for diabetes mellitus. A November 2007 VA treatment record also reflects that the appellant's diabetes mellitus was well controlled. He was instructed to continue taking 5 mg of Glipizide daily. A September 2007 VA treatment record reflects that the appellant had a diabetic sensory foot examination which was normal. In an October 2007 letter, the appellant stated that he took Glipizide and Metformin for his diabetes mellitus, followed a restricted diet, and exercised at least two hours every day. The Board finds that appellant's statement to be credible, as it is consistent with his VA treatment records. The medical evidence of record shows that the appellant takes oral hypoglycemic agents for his diabetes mellitus. The September 2006 VA examination report reflects that the appellant is on a diabetic diet. However, there is no indication that the appellant takes insulin for his diabetes mellitus. Additionally, there is no medical evidence that there are specific restrictions or regulation of his activities because of his diabetes mellitus - a criterion that is specifically required for the next higher rating for his disability. In this regard, the August 2005 and September 2006 VA examination reports noted that the appellant did not have any activity restrictions due to his diabetes mellitus. Additionally, the appellant's VA treatment records do not indicate that the appellant was instructed to restrict his activities due to diabetes mellitus. The Board observes that Note 1 of Diagnostic Code 7913 provides that compensable complications of diabetes will be rated separately and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2011). As noted above, the medical evidence of record does not indicate that the appellant has any complications of diabetes mellitus, other than erectile dysfunction, which was separately service-connected in a September 2009 rating decision. The June 2006 VA optometry consultation specifically found that the appellant had diabetes mellitus without retinopathy and the September 2007 VA treatment record indicated that the appellant had a diabetic sensory foot examination which was normal. Consequently, the Board finds that the appellant's claim for an evaluation in excess of 20 percent for diabetes mellitus must be denied. There is no medical evidence showing that the appellant's diabetes mellitus requires regulation of activities, as that term is defined in the applicable regulation, at any time during the rating period. There is also no evidence that the appellant's diabetes mellitus required insulin. The Board notes that ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, have not been demonstrated in the clinical records. Accordingly, the Board concludes that his symptoms more closely approximate the criteria for the currently assigned 20 percent evaluation. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hence, the claim for an evaluation in excess of 20 percent must be denied. IV. Hypertension Rating Criteria A 10 percent evaluation is assigned for hypertensive vascular disease (hypertension or isolated systolic hypertension) with diastolic pressure predominantly 100 or more, 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. 38 C.F.R. § 4.104, DC 7101. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 or more. A 60 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id. Analysis A December 2005 VA treatment record reflects that the appellant had a blood pressure reading of 132/72. The September 2006 VA examination report reflects that the appellant had blood pressure readings of 120/70, 120/70 and 120/70. He took 20 mg of Enalapril daily and 5 mg of Felodipine daily. There was no hypertensive heart disease or atherosclerotic complications of hypertension. The heart size was normal. The VA examiner noted that the appellant's hypertension was well controlled with the two medications, Enalapril and Felodipine. The April 2007 letter from Dr. M.K. reflects that the appellant's conditions included hypertension and that he took Enalapril and Felodipine. As noted above, the May 2007 VA treatment record reflects that the appellant had erectile dysfunction which was likely related to diabetes mellitus/hypertension. Another May 2007 VA treatment record reflects that the appellant's hypertension was well controlled. He was instructed to continue taking 2 mg of Enalapril and 5 mg of Plendil daily for hypertension. In the October 2007 notice of disagreement, the appellant stated that he took Enalapril, Amlodipine, Lovastatin and Aspirin for hypertension. He also reported that he had to keep up with his diet and exercise program. A December 2007 VA treatment record reflects that the appellant had a blood pressure reading of 131/70. An addendum reflects that he had a standing blood pressure reading of 121/61. The November 2007 VA treatment record indicates the appellant's hypertension was well controlled. His medications of 20 mg of Enalapril and 5 mg of Amlodipine daily were continued. An April 2009 VA postprocedure note indicates that the appellant had a blood pressure reading of 122/71. The record does not reflect that the appellant had a diastolic pressure of predominately 100 or more, or systolic pressure predominately 160 or more, at any time during the rating period, so as to warrant a 10 percent evaluation. Of the seven blood pressure readings of record during the rating period on appeal, none have a diastolic reading of 100 or more or a systolic reading of 160 or more. The appellant would be entitled to a 10 percent evaluation if the evidence of record reflected that he had a history of diastolic pressure of predominantly 100 or more and he required continuous medication for control. The record reflects that the appellant's hypertension was well controlled with medication. During the period on appeal, the appellant has required continuous medication for control of hypertension. A July 1994 private treatment record reflects that the appellant was evaluated for increased blood pressure. The assessment was hypertension. He was prescribed 10 mg of Enalapril daily. Thus, the evidence indicates the appellant has had hypertension since 1994. Historically, the following blood pressure readings are noted in the claims file: 120/95 (January 1991); 115/90 (January 1991); 120/90 (September 1991); 150/90 (October 1991); 130/100 (October 1991); 120/80 (October 1991); 130/80 (November 1991); 120/80 (December 1991); 160/90 (March 1993); 140/100 (January 1994); 120/90 (January 1994); 180/110 (February 1994);150/90 (February 1994); 180/120 (July 1994); 180/106 (July 1994); 125/80 (December 1994); 140/90 (December 1994); 170/95 (November 1996); 130/80 (December 1996); 120/85 (March 1997); 150/100 (January 1998); 140/95 (February 1998); 140/98 (February 1998); 110/85 (March 1998); 110/90 (November 1998); 130/90 (November 1998); 140/90 (November 1998); 128/88 (December 1998); 130/90 (January 1999); 165/85 (August 1999); 150/80 (July 1999);140/80 (September 1999); 160/80 (December 1999); 160/80 (April 2000); 130/70 (July 2000); 160/80 (August 2001); 138/100 (September 2001); 170/90 (November 2001); 140/80 (January 2002); 138/96 (October 2002); 120/80 (April 2003). The evidence does not reflect that the appellant has a history of diastolic pressure of predominantly 100 or more. Of the more than 45 blood pressure readings noted from January 1991, the appellant's diastolic pressure was 100 or more in only 7 readings. As noted above, the appellant's private treatment records indicate that he began taking medication for hypertension in July 1994. Although the appellant had 5 diastolic pressure readings of more than 100 prior to taking medication for hypertension, he had 9 diastolic pressure readings of less than 100. Thus, the evidence does not establish a history of diastolic pressure of predominately 100 or more. Although the appellant's hypertension has required continuous medication during the period on appeal, as the record does not establish a history of diastolic pressure of predominantly 100 or more, a 10 percent evaluation is not warranted under Diagnostic Code 7101. In sum, the competent clinical evidence of record is against a finding that the appellant has a diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, during the rating period on appeal, or a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. The Board finds that the competent credible medical evidence of record demonstrates that the appellant's disability picture more nearly approximates the criteria for a noncompensable rating, and that a compensable rating is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Hence, the appellant's claim for a compensable evaluation for hypertension must be denied. V. Other Considerations The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet.App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral). The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for either the service-connected diabetes mellitus, type II, or hypertension are inadequate. A comparison between the level of severity and symptomatology of the appellant's diabetes mellitus and hypertension with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the appellant's disability level and symptomatology. Further, the appellant has not alleged that the schedular criteria are inadequate. Therefore, the available schedular evaluations for the service-connected disabilities are adequate. Referral for extraschedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extraschedular consideration is moot. See Thun, 22 Vet.App. at 115. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the appellant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the appellant has not argued, and the record does not otherwise reflect, that the disabilities at issue render him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. Entitlement to a compensable evaluation for hypertension, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs