Citation Nr: 1300596	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  10-22 742	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus with erectile dysfunction.


REPRESENTATION

Appellant represented by:	Nevada Office of Veterans' Services


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel

INTRODUCTION

The Veteran served on active duty from February 1969 to October 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.  The Veteran appeals from the assignment of an initial 20 percent evaluation for diabetes mellitus.

In February 2010, the Veteran testified before a Decision Review Officer (DRO) and, in May 2011, he testified before the undersigned Veterans Law Judge at the RO.  Copies of transcripts of these hearings are associated with the claims file.

Lastly, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDING OF FACT

The Veteran's diabetes mellitus is managed with oral medication, insulin, and restricted diet; it does not require regulation of activities.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Here, the Veteran's claim arises from his disagreement with the initial disability rating following the grant of service connection for diabetes mellitus.  It has been held that once service connection is granted, the claim is substantiated and additional notice is not required.  Thus, any defect in the notice provided to the Veteran is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Nevertheless, by letter dated in October 2008 (prior to the grant of service connection), the Veteran was notified of the evidence necessary to substantiate his claim; the information that he needed to provide; and the information or evidence that VA would attempt to obtain.  Additionally, in February 2011, VA supplemented this notice with specific notice of the requirements for establishing entitlement to an increased disability evaluation.  Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied.

VA further has a duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  That is, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d).  Here, all relevant records have been obtained and associated the claims file.  Also, VA provided the Veteran hearings on the appeal in February 2010 and May 2011.  The transcripts are associated with the claims file.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Accordingly, the Board will address the merits of the claim.

Legal Criteria

The Veteran seeks an evaluation greater than 20 percent for diabetes mellitus with erectile dysfunction.  The Veteran has been awarded special monthly compensation based on loss of use of a creative organ.
Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14.

Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be "staged."  Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001).  A disability may require re-evaluation in accordance with changes in a veteran's condition.  It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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 requiring insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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; and 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.

Per Note (1) to Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation, while noncompensable complications are considered part of the diabetic process.

To warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive-i.e., there must be insulin dependence and restricted diet and regulation of activities.  See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned].

"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) (citing 61 Fed. Reg. 20,440 (May 7, 1996).

Analysis

After careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent.  Neither the lay nor the medical evidence establishes that the Veteran's treatment regimen includes regulation of activities and, therefore, his symptoms do not more nearly reflect the criteria for the next higher rating.  38 C.F.R. § 4.7.

Private treatment records dated since 2006 and report of VA examination dated in April 2009 show that diabetes mellitus was found several years earlier and was uncontrolled until he began treatment with oral medication, insulin, and restricted diet.  Report of VA examination dated in April 2009 reflects that the Veteran denied hospitalization and episodes of hypoglycemia or ketoacidosis.  He reported that he had been instructed to follow a restricted or special diet.  He reported minimal restriction of activities-stating that he has to watch how vigorous he exercises to avoid a hypoglycemic reaction.

Both the medical record and sworn testimony reflect that the Veteran was followed by his private care provider for diabetes mellitus.  Private treatment records dated from September 2008 to August 2009 reflect that the Veteran was advised to lose weight and engage in a graduated exercise program.  At his August 2009 visit, the Veteran denied diabetes related symptoms.  At the request of the Veteran, his private physician submitted a letter dated in August 2009, which noted that his diabetes mellitus was fairly controlled with insulin and oral medications.

The Veteran testified that he worked in housekeeping for a hotel and that his work was physically demanding.  He noted working eight hours a day making up 13 rooms in that time.  He denied having been told by his doctor to restrict his physical activities.  He denied lost time from work due to diabetes mellitus or complications thereof.  He denied vision problems and symptom compatible with peripheral neuropathy.  He noted that he has regular follow-up appointments for diabetes mellitus every 3 months.  The Veteran suggested that regulation of activities was his having to take snacks during the day to avoid hypoglycemia.

The medical evidence shows that the Veteran's activities do not need to be regulated because of his diabetes mellitus.  The regulation describes "regulation of activities" as avoidance of strenuous occupational and recreational activities.  VA and private treatment records are silent regarding any regulation of the Veteran's activities due to his diabetes mellitus, and the Veteran's testimony clearly establishes that diabetes mellitus does not affect the Veteran's ability to perform strenuous activity.  Although the Veteran told the April 2009 VA examiner that his activities were restricted, there is no indication in either the lay or medical evidence that activities are regulated per medical advice and the record reflects that that he continued working in housekeeping during the course of the appeal.  In fact, nothing in the probative evidence suggests regulation of activities within the meaning of the schedular criteria is required as a result of the diabetes mellitus.

The Board acknowledges that the Veteran is competent to report his symptoms and has considered the lay evidence in this regard.  However, the more probative evidence consists of that prepared by neutral, skilled medical professionals and such evidence does not demonstrate the medical necessity of regulation of his activities due to diabetes mellitus at any time during the appeal period.  Therefore, an evaluation in excess of 20 percent is not for application.

The Board has also considered whether a separate compensable evaluation is warranted for erectile dysfunction and retinopathy.  In regards to retinopathy, the Board finds that the medical evidence shows a history of mild diabetic retinopathy but that the Veteran has denied vision problems during the appeal period on his various private evaluations and on his VA examination in April 2009; also, the medical evidence shows normal eyes.  As such, the Board finds that there is no basis for a separate disability evaluation at this time.  As for the complaints and findings for erectile dysfunction, the record shows an inability to achieve or maintain an erection, which the Veteran treats with Viagra.  However, a review of the pertinent evidence, lay and medical, shows no deformity of the penis or compensably disabling symptoms associated with erectile dysfunction.  See 38 C.F.R. § 4.115b, Diagnostic Code 7522.  Therefore, a separate compensable rating for erectile dysfunction is not warranted.

Accordingly, the claim is denied.  As the disability has remained essentially unchanged during the appeal period, a uniform disability evaluation is for application and there is no basis for a staged rating.  See Fenderson, supra.  Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); Gilbert, supra.


ORDER

An evaluation in excess of 20 percent for diabetes mellitus is denied.




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs