Citation Nr: 1303387 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-36 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased rating for a left foot disability with left great toe metatarsal head resection, currently rated 30 percent disabling. 2. Entitlement to an increased rating for diabetes mellitus, currently rated 20 percent disabling. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1973. This appeal comes before the Board of Veterans' Appeals (Board) from March 2006 and December 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO), which denied the benefits sought on appeal. In January 2012, the Board remanded this appeal for further development. On remand, an August 2012 rating decision granted service connection for erectile dysfunction and peripheral neuropathy of the bilateral lower extremities, both secondary to diabetes mellitus, effective October 13, 2004. That decision also granted special monthly compensation (SMC) for the loss of use of a creative organ, secondary to the service-connected diabetes mellitus, effective from March 14, 2012. That decision also granted entitlement to a total disability rating based on individual unemployability (TDIU), effective July 3, 2007. The Veteran did not appeal either the initial disability ratings or effective dates assigned. Therefore, those issues have been resolved, and are not currently before the Board on appeal. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 C.F.R. § 20.200 (2012). The case has now been returned to the Board for appellate disposition. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left foot disability with left great toe metatarsal head resection has been manifested by severe symptoms, but has not been manifested by actual loss of use of the left foot. 2. Throughout the appeal, the Veteran's diabetes mellitus has required insulin or oral hypoglycemic agent and a restricted diet. However, the evidence does not show that the diabetes mellitus has also required regulation of his activities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a left foot disability with left great toe metatarsal head resection are not met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a), 4.1, 4.2, 4.7, 4.41, 4.71a, Diagnostic Code 5284 (2012). 2. The criteria for a rating in excess of 20 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.321, 3.326(a), 4.1, 4.2, 4.7, 4.41, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (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 claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (law requires only that Board address reasons for rejecting evidence favorable to the Veteran). 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 Veteran. 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 Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist 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, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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. The notice must be provided prior to an initial unfavorable decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to notify have been fully satisfied. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Letters from VA dated in August 2006, January 2012, February 2012, and April 2012 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, and an explanation of what evidence was to be provided by him and what evidence VA would attempt to obtain on his behalf. Letters dated in August 2006, October 2008, January 2012, and February 2012 also provided the Veteran with information concerning the ratings and effective dates that could be assigned should his claims be granted. Dingess v. Nicholson, 19 Vet. App. 473 (2006). None of the letters were provided before the initial RO adjudication in the March 2006 rating decision. However, after the Veteran was provided the letters, the claims were readjudicated in the October 2008 statement of the case and in the September 2009 and August 2012 supplemental statements of the case based on any additional evidence received in response to the notice letters. If there was no notice provided prior to the initial adjudication of the claims, any timing error may be effectively cured by providing any necessary notice and then going back and readjudicating the claims, including in a statement of the case or supplemental statement of the case, such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of his claims. Therefore, any timing error in the provision of the notice is ultimately inconsequential and nonprejudicial, harmless error. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Therefore, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claims. That duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service medical records, Social Security Administration (SSA) disability benefits records, and post-service VA and private treatment records have been obtained. The Veteran's Virtual VA electronic records were also reviewed and considered in preparing this decision. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The Veteran was also afforded VA examinations, and the reports of those examinations contain all findings needed to properly adjudicate the claims on appeal. 38 C.F.R. § 4.2 (2012). Finally, the Board is satisfied as to substantial compliance with its January 2012 remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). That included scheduling the Veteran for additional VA examinations, which he had in March 2012, May 2012, and June 2012. The remand also included associating the Veteran's VA examination that was ordered on March 2011. The requested examination actually took place on May 2011 and has been associated with the claims file. Further, that included obtaining and associating the Veteran's recent VA and private treatment records with the claims file. That action was completed. Thus, the Board finds that there has been substantial compliance with its remand directives. The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Separate Diagnostic Codes identify the various disabilities. The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. Butts v. Brown, 5 Vet. App. 532 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which Diagnostic Code or Codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Foot Disability The Veteran asserts that his service-connected left foot disability with left great toe metatarsal head resection is more severe than rated by the current disability rating. The Veteran is currently in receipt of a 30 percent evaluation for his foot disability with left great toe metatarsal head resection under Diagnostic Code 5284. 38 C.F.R. § 4.71a (2012). Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Severe residuals of foot injuries are rated 30 percent disabling. Foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5284, Note (2012). The Board notes that words such as severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2012). Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 4.2, 4.6 (2012). Loss of use of a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function and whether acts such as balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 3.350(a)(2) (2012). Applying the above criteria to the facts of the case, the Board finds that the Veteran is not entitled to a higher rating of 40 percent. The preponderance of the evidence shows that the Veteran does not have a disability analogous to actual loss of use of his left foot, and he does not contend otherwise. At all of the VA examinations and in all of the VA and private treatment records, the Veteran was able to use his left foot, albeit with limited motion. The Veteran can walk and stand on his left foot, albeit for limited distances. For instance, at the May 2011 VA examination, the Veteran stated that he could walk 100 feet prior to needing a rest and could stand for 10 minutes prior to needing a rest. There is no documentation in the record of the Veteran being unable to use his left foot. Specifically, at the May 2012 VA examination, the VA examiner determined that the Veteran's left foot does not have functional impairment, such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The Board finds that medical opinion to be very persuasive. Thus, the Board finds that a 40 percent disability rating is not warranted for the foot disability with left great toe metatarsal head resection. 38 C.F.R. § 4.71a (2012). The Board has considered whether a higher schedular rating is warranted under any other Diagnostic Code, but finds that none is applicable. The Board is cognizant of, and has carefully considered, the Veteran's subjective reports. However, none of the criteria required for a higher disability rating were diagnosed or noted. The treatment notes of record do not provide medical support for a higher rating. Thus, the Veteran's lay testimony concerning the severity of his foot disability with left great toe metatarsal head resection is unsubstantiated and, thus, probatively outweighed by the objective medical findings to the contrary. Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1991); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2) (2012); Rucker v. Brown, 10 Vet. App. 67 (1997). Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the evidence does not meet or approximate the criteria for a disability rating in excess of 30 percent for a foot disability with left great toe metatarsal head resection. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (2012). Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by a 30 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for increased rating and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diabetes Mellitus The Veteran asserts that his diabetes mellitus is more severe than rated by the current disability rating. The Veteran is currently in receipt of a 20 percent rating for diabetes mellitus under Diagnostic Code 7913. 38 C.F.R. § 4.119 (2012). Under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119 (2012). The phrase regulation of activities means avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The adjudicator is instructed to rate compensable complications of the diabetes separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The RO granted service connection erectile dysfunction and peripheral neuropathy of the lower extremities, both secondary to diabetes mellitus. The erectile dysfunction was assigned a 0 percent disability rating and the Veteran is receiving SMC for that disability, so therefore the erectile dysfunction cannot be considered part of the diabetic process under Diagnostic Code 7913. The peripheral neuropathy of the bilateral lower extremities was assigned a 20 percent rating for each leg. Because the Veteran's peripheral neuropathy is compensable, it is not considered part of the diabetic process under Diagnostic Code 7913. It must instead be rated separately. The Veteran has not expressed disagreement with the August 2012 rating decision concerning the peripheral neuropathy ratings. Therefore, the Board will not address whether the Veteran is entitled to a higher rating for his peripheral neuropathy. The May 2012 VA examiner determined that the Veteran's only complications from his diabetes mellitus were erectile dysfunction and peripheral neuropathy of the lower extremities. The VA examinations and treatment records do not provide contrary evidence. Therefore, the Board does not need to discuss any further complications of the Veteran's diabetes mellitus. The Board finds that the Veteran is not entitled to a higher rating for diabetes mellitus. The evidence of record shows that his mellitus requires a restricted diet and insulin or an oral hypoglycemic agent, but does not necessitate a regulation of his activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). All of the VA examiners determined that the Veteran's diabetes mellitus does not require a regulation of his activities. The May 2011 VA examiner found that the Veteran's diabetes mellitus does not restrict his ability to perform strenuous activities. The VA and private treatment records also do not include any indication that the Veteran has required regulation of his activities as part of the medical management of his diabetes mellitus. There is no evidence in the record of physician-prescribed restrictions on the Veteran's strenuous activities to prevent hypoglycemic reactions. In fact, at his February 2009 VA examination, the Veteran told the VA examiner that he did not have any physical activity limitations due to his diabetes, but he did have physical activity restrictions secondary to his foot surgeries. Therefore, since all three requirements for a higher 40 percent rating are not met, he cannot receive this greater rating. The use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met Melson v. Derwinski, 1 Vet. App. 334 (June 1991). The Board has considered whether a higher schedular rating is warranted under any other Diagnostic Code, but finds that none is applicable. The Board is cognizant of, and has carefully considered, the Veteran's subjective reports. However, none of the criteria required for a higher disability rating were diagnosed or noted. The treatment notes of record similarly do not provide medical support for a higher rating. Thus, the Veteran's lay testimony, concerning his diabetes mellitus purportedly requiring a regulation of his activities, is unsubstantiated and probatively outweighed by the objective medical findings to the contrary. Grottveit v. Brown, 5 Vet. App. 91 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1991); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); 38 C.F.R. § 3.159(a)(2) (2012); Rucker v. Brown, 10 Vet. App. 67 (1997). Competency is a legal concept determining whether testimony may be heard and considered and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the overall evidence does not meet or approximate the criteria for a disability rating in excess of 20 percent for diabetes mellitus under 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Throughout the appeal period, the Veteran's level of disability has most nearly approximated that contemplated by a 20 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for increased rating and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). An extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012); Fanning v. Brown, 4 Vet. App. 225 (1993). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Veteran's left foot disability with left great toe metatarsal head resection and diabetes mellitus cause impairment in his occupational functioning and capacity. However, the extent of that impairment is adequately contemplated by the rating criteria, which reasonably describe the effects of his disabilities. The degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). There is no evidence of exceptional or unusual circumstances to suggest that the Veteran is not adequately compensated by the regular rating schedule. Throughout his appeal, all of the evaluation and treatment he has received for diabetes mellitus has been on an outpatient basis, not as an inpatient. During the course of his appeal, in August 2005, the Veteran was hospitalized on one occasion for a left bunionectomy foot surgery. The Veteran recovered from the surgery and has not required additional surgery or hospitalizations for his left foot. Therefore, that one surgery does not represent frequent periods of hospitalization for his foot disability with left great toe metatarsal head resection, so as to constitute an unusual or exceptional circumstance. Further, despite the Veteran's lay statements, the evidence of record does not establish that the Veteran is unable to work due solely to his foot disability with left great toe metatarsal head resection or his diabetes mellitus. Accordingly, the Board finds that the Veteran's current level of occupational and other impairment in his daily living is contemplated by the current schedular ratings he already has for his foot disability with left great toe metatarsal head resection and diabetes mellitus. Thus, extraschedular consideration is not warranted for these claims. Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER A rating in excess of 30 percent for a left foot disability with left great toe metatarsal head resection is denied. A rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs