Citation Nr: 1241041	
Decision Date: 12/03/12    Archive Date: 12/12/12

DOCKET NO.  08-06 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an initial rating in excess of 20 percent for diabetes mellitus.

2.  Entitlement to an initial rating in excess of 20 percent for partial complex seizures.

3.  Entitlement to an effective date earlier than June 13, 2005, for the grant of service connection for partial complex seizures.

4.  Entitlement to total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America




ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from February 1969 to September 1980. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for partial complex seizures and diabetes mellitus, and denied entitlement to TDIU.  

The issues of an earlier effective date for partial complex seizures, an initial rating greater than 20 percent for partial complex seizures, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Throughout the rating period on appeal, the Veteran's diabetes mellitus, type II, has reasonably been shown to have been manifested by insulin use, restricted diet, and regulation of activities; there is no showing of any complications.


CONCLUSION OF LAW

The criteria for an initial disability rating of 40 percent, but no higher, for diabetes mellitus, type II, have been met throughout the appeal period.  38 U.S.C.A. §§ 1155, 5107 (West 2002); § 5103 (West 2002); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

VCAA notice must be provided prior to an initial unfavorable 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Analysis

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 (2012).  Separate diagnostic codes identify the various disabilities.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more nearly 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 remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.

An appeal from the initial assignment of a disability rating, such as this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

Throughout the rating period on appeal, the Veteran has been in receipt of a 20 percent rating for his type II diabetes mellitus, pursuant to Diagnostic Code 7913.  

Under Diagnostic Code 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent evaluation. 

Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent evaluation. 

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 warrants a 60 percent evaluation. 

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.  38 C.F.R. § 4.119, Diagnostic Code 7913 (2012).

Note (1) to Diagnostic Code 7913 instructs that compensable complications of diabetes mellitus are to be separately evaluated 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.  

Turning to the relevant evidence of record, the Veteran was afforded a VA examination in March 2007, where his history was noted.  In this regard, he was taking insulin.  There was no history of treatment for or hospitalization for diabetic ketoacidosis or hypoglycemia.  There was no history of hypoglycemic episodes or bowel or bladder impairment.  Restriction of activities had not been prescribed.  The Veteran was following a diabetic diet.  There was no evidence of retinopathy, blurred vision, neuropathy, numbness or tingling of the extremities or erectile dysfunction.  The examiner noted that the Veteran diabetes mellitus appeared to be under fair control.   

In a September 2008 independent private medical opinion, Dr. C.N.B. indicated that he had reviewed the Veteran's treatment records, in addition to interviewing the Veteran.  Dr. C.N.B. opined that the Veteran's blood sugar was not well controlled.  It was advised that the Veteran avoid strenuous occupational and recreational activities.

In a May 2009 VA examination, the examiner noted that the Veteran was not restricted in his activities due to his diabetes mellitus.

In several statements, the Veteran contends that whenever he engaged in activities he noticed his blood sugars would escalate to high levels and then decrease to low levels that would prompt him to treat it with glucose pills.

Upon review of the aforementioned evidence, the Board finds that the Veteran's diabetes mellitus warrants an initial disability rating of 40 percent.  In this regard, the evidence demonstrates throughout the appeal period that insulin and a restricted diet have been required to manage the Veteran's diabetes mellitus.  With respect to regulation of activities, the Board acknowledges that this was not shown in the VA examination reports.  However, credible evidence of "regulation of activities" must be considered.  In this regard, a private medical professional has submitted a statement to the effect that the Veteran's diabetes mellitus results in very restricted activities and regulation of activities.  Accordingly, the rating criteria for an initial disability rating of 40 percent under Diagnostic Code 7913 have been met.

While a 40 percent evaluation is deemed warranted, the criteria for a 60 percent, or higher, schedular rating for diabetes mellitus have not been met because the evidence fails to show 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.  Neither does the evidence contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for higher ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. 

After considering all the evidence of record, including the Veteran's statements, the Board finds that the evidence is at least in relative equipoise as to the propriety of the next-higher 40 percent rating.  Thus, the benefit of the doubt doctrine is  applied.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

Extraschedular Considerations

The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2012). 

An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture.  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008). 

If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-116.  When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating.  Otherwise, the schedular evaluation is adequate, and referral is not required.  38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116.  

In this case, the schedular evaluations are not inadequate.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected diabetes mellitus, type II, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder.   


ORDER

Throughout the pendency of this appeal, an initial disability rating of 40 percent, but no higher, for diabetes mellitus, type II, is granted. 


REMAND

The Veteran has argued that he is entitled to an effective date earlier than June 13, 2005, for the award of service connection for partial complex seizures.  In several written statements, he raised the allegation that the RO committed clear and unmistakable error (CUE) in the February 1981 rating decision that granted service connection for basilar headaches, instead of a seizure disorder, based on the November 1980 VA examination.  The RO, however, has yet to consider this issue. 

The United States Court of Appeals for Veterans Claims (Court) has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together.  Harris v. Derwinski, 1 Vet. App. 180   (1991).  The present claim for an effective date earlier than June 13, 2005, for the award of service connection for partial complex seizures would clearly be affected by a finding of CUE in the February 1981 rating action that denied service connection for partial complex seizures. 

Accordingly, the Board finds that the issue of whether CUE exists in the February 1981 rating decision that granted service connection for basilar headaches instead of a seizure disorder is inextricably intertwined with the current effective date issue on appeal, and must be resolved prior to the Board's consideration of the earlier effective date claim.

Regarding the initial 20 percent rating assigned for partial complex seizures, the Veteran has submitted several statements indicating that an initial 40 percent rating is warranted, as he experiences and continues to experience several small seizures on a weekly basis.  Notably, the most recent examination regarding the Veteran's partial complex seizures is dated in August 2006.  Consequently, a VA examination is warranted to evaluate the current severity of the partial complex seizures.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating).

Regarding TDIU, in Rice v. Shinseki, 22 Vet. App. 447(2009), the Court held that TDIU is an element of an increased or initial rating.  In July 2006, the Veteran submitted a claim for TDIU.  The claim for TDIU is an element of the initial rating claims currently before the Board.  Id.  In the case of a claim for total rating based on individual unemployability, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the appellant's service-connected disabilities has on his ability to work.  Friscia v. Brown, 7 Vet. App. 294, 297 (1994).  The record does not include such an opinion.

Finally, as this matter is being remanded for the reasons set forth above, any additional ongoing VA treatment records of the Veteran must be obtained and associated with the claims file.  See 38 C.F.R. § 3.159(c)(2), (c)(3); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is deemed to have constructive knowledge of all VA records, and such records are considered evidence of record at the time a decision is made.).

Accordingly, the case is REMANDED for the following:

1. The RO should obtain any and all relevant VA outpatient treatment records dated April 2010 to the present.

2. The RO should adjudicate the issue of whether CUE exists in the February 1981 rating decision that granted service connection for basilar headaches instead of a seizure disorder.  The Veteran and his representative should be provided with notice of its decision and of his appellate rights.  If the Veteran files a timely notice of disagreement, he and his representative should be provided a statement of the case and an opportunity to respond.

3. The RO should schedule the Veteran for a VA examination for the purpose of determining the severity of his seizure disorder.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  Any special tests deemed medically advisable should be conducted.

4. The Veteran should also be afforded a VA examination to obtain an opinion as to whether the Veteran's service connected disabilities would in combination preclude gainful employment for which his education and occupational experience would otherwise qualify him.

The examiner should review the claims folder and relevant records in Virtual VA.

The examiner should provide reasons for the opinion.  If the Veteran is found capable of gainful employment, the examiner should provide examples of the employment for which the Veteran would be qualified and he would be able to perform.

The examiner should note that the Veteran's service-connected disabilities currently consist of (posttraumatic stress disorder; seizures; diabetes mellitus; residuals of shell fragments; left knee disability, to include stability; tinnitus; scars of the left knee and left cheek; headaches; hearing loss; and traumatic brain injury).

If an opinion cannot be rendered in response to these questions, the reason therefore should be explained.

A rationale for any opinion expressed should be provided.  It is requested that the examiner discuss the prior medical evidence in detail and reconcile any contradictory evidence. 

5. The RO should then readjudicate the claims of entitlement to an effective date earlier than June 13, 2005, for the award of service connection for partial complex seizures; and for an initial rating greater than 20 percent for partial complex seizures; as well as TDIU.  

6. All applicable laws and regulations should be considered.  If a determination remains adverse to the Veteran in any way, he and his representative should be furnished a supplemental statement of the case, allow an appropriate period of time for response before returning the case to the Board, if otherwise appropriate.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs