Citation Nr: 1301757 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-45 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement for a rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1970 to October 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for diabetes mellitus, rated 20 percent, effective March 30, 2009. FINDING OF FACT At no time during the appeal period is the Veteran's diabetes mellitus shown to have required regulation of activities (in addition to insulin and restricted diet).. CONCLUSION OF LAW A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.7 , 4.119, Diagnostic Code (Code) 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A September 2010 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; while a June 2011 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). An April 2009 letter also provided him general disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ( "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). VA treatment records from 2008 through 2011 have been secured for the record. [The Board notes that in his claim seeking service connection the Veteran indicated he had also sought treatment at South General/Southwest General hospital. He submitted a release for records from such facility. However, the release required a technical amendment as it named both VA facility and Southwest General (which invalidated the release). An April 2009 letter explained to the Veteran that another authorization was needed for VA to obtain the records; he did not respond. However, it was determined that treatment at Southwest General was for cardiac disability (and pertained to a claim separately addressed), and that the records from that facility did not pertain to treatment for diabetes, the disability at issue herein.] The RO arranged for a VA examination in June 2011. The Board notes that the VA examination report contains sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative evidence that is adequate for rating purposes. Hence, the Board finds this examination to be adequate for the purposes of adjudicating the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. II. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, as well as in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. 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). Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the complete medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time and "staged" ratings may be assigned for distinct periods of time where the severity of the disability varied, based on facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Diabetes mellitus is rated under Diagnostic Code 7913. A 20 percent rating is assigned when the diabetes requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent rating is assigned when insulin, a restricted diet and regulation of activities are required, along 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 requires more than one daily injection of insulin, restricted diet, and regulation of 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. The regulation of activities is defined as avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119. Note 1 to Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable evaluations are considered part of the diabetic process under Code 7913. 38 C.F.R. § 4.119, Code 7913. The Veteran asserts that his diabetes is more disabling than reflected by the current 20 percent rating. He cites to cardiac disability (which is not service connected). . The Veteran's diabetes was diagnosed by a private provider in February 2008, and he began receiving treatment at that time. He began receiving treatment for diabetes in August 2008; at that time, he underwent a Diabetes Education Initial Assessment. It was noted that the Veteran took diabetes medications, was not on a diet, and exercised regularly. The Veteran's claim seeking service connection for diabetes was received in March 2009. 2009 and 2010 VA treatment records show that the Veteran had stable blood sugars, controlled with medication. Restriction of activities was not mentioned. In an October 2010 statement, the Veteran's former supervisor at work indicated that the Veteran's ability to sustain normal work requirements had been limited by his cardiac disability. [An interim unappealed rating decision granted the Veteran service connection for ischemic heart disease, rated 60 percent.] A primary care treatment note, dated in March 2011, indicates that the Veteran was instructed to increase his activity as part of his regimen for diabetes treatment. An April 2011 VA treatment note reflects that the Veteran's diabetes was not under optimal control, and in May 2011, insulin treatment was initiated. On June 2011 VA examination, the examiner noted that he had read the Veteran's claims file and reviewed his electronic chart prior to the examination. It was noted that the Veteran's treatment for diabetes included insulin and that he tried to follow a low carbohydrate diet, avoiding sweets. It was noted that he had not been hospitalized for diabetes, hypoglycemia or ketoacidosis. He reported that (about once a week) he experiences lightheadedness or dizziness associated with low blood sugar levels, which quickly resolve with the ingestion of glucose tablets. The examiner noted that the Veteran had no restriction of activities as a result of diabetes mellitus. On June 2011 VA examination it was noted that neurological system evaluation was unremarkable, with normal peripheral nerve examination of the upper and lower extremities, bilaterally. It was noted that no diabetic retinopathy was found on optometry examination in April 2011. There were no objective findings of skin pathology related to diabetes mellitus, and the Veteran did not have any complaints of bowel or bladder functional impairment. The criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive, i.e., each level of increase in the rating requires additional criteria [to those for the lower rating] which must be met to warrant an increase in the rating. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). What distinguishes the schedular criteria for the current, 20 percent, rating for diabetes from those for the next higher, 40 percent, rating is that to warrant a 40 percent rating in addition to requiring diet and insulin for control, the diabetes must also require regulation of activities ("avoidance of strenuous occupational and recreational activities"). 38 C.F.R. § 4.119 , Code 7913. The record does not show that at any time during the appeal period the Veteran's diabetes required regulation (avoidance) of activities. On the contrary, a recent treatment note reflects that the Veteran was instructed to increase his activity as part of his diabetes treatment. Accordingly, the evidence does not show that at any time during the appeal period manifestations of the Veteran's diabetes mellitus satisfied, or approximated, the criteria for a 40 percent rating for diabetes. See 38 C.F.R. § 4.7. Consequently, such rating is not warranted. Furthermore, the record does not reflect any further separately compensable complications of diabetes. [Ischemic heart disease is service-connected and separately rated.] Neurological, skin, and eye evaluations did not reveal any diabetes-related pathology. The Board has considered whether referral of the matter for extraschedular consideration is indicated. There is no objective evidence, or allegation, suggesting that the disability picture presented by the Veteran's diabetes is exceptional or that schedular criteria are inadequate (the symptoms and impairment shown are all encompassed by the schedular criteria for the current rating assigned). See 38 C.F.R. § 3.321 (b); Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not indicated. Finally, on June 2011 VA examination it was noted that the Veteran had been laid off for 5 months. While a supervisor had indicated in October 2010 that the Veteran's cardiovascular disability had impacted on his ability to function at work, there is nothing in the record to suggest, nor is it alleged, that diabetes mellitus renders the Veteran unemployable. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised in the context of this claim. For the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for diabetes mellitus, type II, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. Accordingly, the appeal in this matter must be denied. ORDER A rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs