Citation Nr: 1303779 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-34 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September1965 to September 1969. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which denied the Veteran's claim. In May 2011, the Veteran presented testimony in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In May 2011, the Board received additional evidence from the Veteran. This evidence has not been reviewed by the agency of original jurisdiction. However, the Veteran included a written waiver of this procedural right with the evidence received. 38 C.F.R. §§ 19.37, 20.1304 (2012). Thus, the Board will consider the newly submitted evidence in the first instance. The issue of entitlement to service connection for ischemic heart disease has been raised by the record by the Veteran and his representative in October 2010. However, this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence of record indicates that the Veteran's type II diabetes mellitus treatment requires a restricted diet and the use of insulin and, but has not required restriction of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the 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. A VCAA letter dated in October 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). With regard to the Veteran's claim, the Veteran was provided a VA examination in October 2009. There is no objective evidence indicating that there has been a material change in the severity of this service-connected disability since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. The Board finds this examination report to be thorough and consistent with contemporaneous medical records. The examination in this case is adequate upon which to base a decision with regards to this claim. See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis The Veteran seeks an increased disability rating for his service-connected type II diabetes mellitus which is currently evaluated as 20 percent disabling under Diagnostic Code 7913. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a) 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. Diagnostic Code 7913 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (diabetes mellitus) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7913. 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, is assigned a 100 percent disability rating. 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, is assigned a 60 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating, while diabetes mellitus requiring insulin and restricted diet, or use of an oral hypoglycemic agent and a restricted diet, is assigned a 20 percent disability rating. Diabetes mellitus that is manageable by restricted diet only is assigned a 10 percent disabling. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Board notes that in general, 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. However, in the present case, the Board observes that the rating criteria contained in Diagnostic Code 7913 is "successive". That is, the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Accordingly, under this and other diagnostic codes that are successive, consideration of 38 C.F.R. § 4.7 is not required. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board will therefore review the evidence to determine whether any separate disability ratings may be assigned. This requires analysis of the severity of any identified complications of diabetes in order to ascertain whether such complications are compensable. Service connection has previously been established for hypertension and peripheral neuropathy of the bilateral lower extremities, both as secondary to diabetes. The Veteran has not sought increased ratings for those separate disabilities. The Veteran has additionally not evidenced any further complications (vision, neurovascular, etc) related to his diabetes mellitus. In short, there are no complications of diabetes that require a further separate rating. The Board must now ascertain whether a disability rating greater than 20 percent can be awarded for the Veteran's type II diabetes mellitus by applying the schedular criteria. Critically, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require (1) insulin, (2) a restricted diet, and (3) regulation of activities. These criteria are conjunctive; all three elements must be met. See supra Melson v. Derwinski, 1 Vet. App. 334 (June 1991). The evidence of record indicates that the Veteran has been placed on a restrictive diet to control his diabetes mellitus and that he has been prescribed insulin. Thus, two out of the three requirements for a higher disability evaluation are meet. Turning to the third requirement, that of regulation of activities, the Veteran remarked at his May 2011 Board hearing that his feet hurt. He said that about every half an hour he had to sit a few minutes. He said that he was unable to go bicycle riding. He said that he was paying for a gym membership, but he did not go often. He remarked that if he felt like he could get to the gym, he went. He said that he would drive his spouse to the mall, but his spouse would do all of the shopping. He added that his need for insulin had increased. He saw his doctor for treatment every 90 days. The Veteran stated that no doctor had given him a specific list of activities to avoid. He said that he would get hypoglycemic episodes frequently, but he had not been hospitalized. He remarked that he was employed full time, but he had not had to take time off from work. A VA treatment record from August 2009 reflects that the Veteran worked approximately 10 hours per day. September 2009 and March 2011 letters from C.Y., M.D., reflect that the Veteran was on intensive insulin therapy and oral diabetic agents. Dr. Y. stated that the Veteran's diet and activity must be regulated, and his insulin required regular adjustments. In October 2009, the Veteran was given a VA compensation and pension examination. At that time, the Veteran reported that he had experienced hypoglycemic episodes, and his blood sugars had been fluctuating. The report contains the Veteran's spouse's statement that the Veteran would work 10 hours a day and then would try to work out at the gym. It was noted that the Veteran's last hospitalization was 19 years previously. The examiner remarked that although the Veteran had present episodes of hypoglycemia or ketoacidosis, none of them required hospitalization. The examiner indicated that the Veteran was instructed to follow a restricted diet, but he opined that the Veteran was not restricted in his ability to perform strenuous activities. Although the Veteran reported being slower at his job because of his disability, the examiner noted that there were no significant effects on the Veteran's employment from his diabetes. It was further noted that the Veteran worked more than 10 hours per day and only took time off for medical appointments. In evaluating the evidence, the Board notes that regulation of activities is defined as "avoidance of strenuous occupational and recreational activities". 38 C.F.R. § 4.119, Diagnostic Code 7913; see also Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). The weight of the evidence does not show that the Veteran's diabetes mellitus results in any regulation of activities. The Board has carefully considered the Veteran's hearing testimony and the two letters from Dr. Y... While this evidence shows that the Veteran has had to make adjustments to his life, this evidence does not show that his diabetes requires him to avoid strenuous occupational and recreational activities. For example, while the Veteran testified that he is no longer able to enjoy riding his bicycle and perform at the gym as he once did, he also testified that he is employed full-time and had not had to lose any time from work due to his diabetes. Moreover, despite the reference to the regulation of activities by Dr.Y in the March 2011 letter, the Veteran testified at his May 2011 hearing that t no doctor had ever given him a list of activities to avoid. While Dr. Y. remarked in her letters that the Veteran's activity had to be regulated, she did not specify how his activities had to be regulated. Significantly, she did not remark on the Veteran's current ability to work 10 hours per day. As such, neither the Veteran's testimony nor the letters from Dr. Y. arise to the definition of "avoidance of strenuous occupational and recreational activities" cited above as necessary for a 40 percent rating. The Board has also carefully considered the report of the October 2009 VA examination. The examiner specifically opined that the Veteran was not restricted in his ability to perform strenuous activities. The examiner reviewed all of the available records, performed a thorough examination, and commented on all of the test results. The examiner also included information regarding the Veteran's employment and outside activities. For these reasons, the Board finds the October 2009 VA examination report to be the most persuasive evidence of record. The Board therefore finds that no basis exists for the assignment of a schedular rating in excess of the already assigned 20 percent for diabetes under Diagnostic Code 7913, as the most persuasive evidence of the record weighs against the claim. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluate 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 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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected diabetes is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. In summary, the Board concludes that the preponderance of the evidence is against assigning an evaluation in excess of 20 percent for the Veteran's service-connected diabetes mellitus for any period of time on appeal. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Assignment of staged ratings has been considered and is not for application. Hart, supra. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 20 percent for service-connected diabetes mellitus, type II, is not warranted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs