Citation Nr: 1304301 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 06-03 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for diabetes mellitus Type II from March 2, 2004 to May 25, 2004. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus Type II on and after May 26, 2004. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to October 1981, to include service in Vietnam from March 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for diabetes mellitus Type II (diabetes), and assigned an initial 10 percent evaluation effective from March 2, 2004. While the appeal was pending, a May 2006 rating decision was issued assigning a 20 percent evaluation for diabetes effective from May 26, 2004. Where, as is the case here, an award of service connection for a disability has been granted and the assignment of an initial disability evaluation and subsequently assigned disability evaluations for that condition are disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged," and have been in this case. The Board further observes that as the increased evaluations granted during the appeal period do not represent the maximum rating available for the disability at issue, the Veteran's claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the claim is characterized as shown on the title page of this decision. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Veteran was scheduled for a travel Board hearing in December 2007. He did not appear for that hearing and has not since expressed any desire to have one. In May 2006, the Veteran appeared for a Decision Review Officer conference. A copy of the conference report is on file. The Board remanded the case for further development in February 2010 and May 2012. As will be discussed further herein, there has been substantial compliance with those remand directives, and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). As a matter of clarification, the May 2012 Board remand raised the issue of whether service-connected was warranted for erectile dysfunction, secondary to diabetes mellitus or peripheral neuropathy of the lower extremities. A review of the file reflects that in a January 2005 rating action, service connection was established for erectile dysfunction, secondary to service-connected coronary artery disease and hypertension. Accordingly, as this matter has already been addressed and resolved in the Veteran's favor, it need not be further addressed in this decision. A January 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1 For the portion of the appeal extending from March 2, 2004 to May 25, 2004, the evidence reflects that diabetes mellitus was diagnosed and was being managed by a restricted diet, but was not treated with medication. 2. For the portion of the appeal period extending from May 26, 2004 forward, the evidence reflects that diabetes was treated with oral medication and a restricted diet, but with no indication of medically directed regulation of activities or the required use of insulin. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for diabetes mellitus Type II, have not been met for the portion of the appeal period extending from March 2, 2004 to May 25, 2004. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a disability rating in excess of 20 percent for diabetes mellitus Type II, have not been met for the portion of the appeal period extending from May 26, 2004, forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO did provide the appellant with notice in April 2004, prior to the initial decision on the claim in January 2005. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The notice letters notified the Veteran that, to substantiate a claim for increased compensation, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice also provided examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. Specifically, he was informed in April, June and August letters issued in 2010 of the types of evidence that might show such a worsening, including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and, statements from other individuals who were able to describe from their knowledge and personal observations in what manner the disability had become worse. The letters also listed examples of evidence, which included information about on-going treatment, Social Security Administration determinations, statements from employers, and lay statements from people who have witnessed how the disability symptoms affect him. The 2010 letters also informed the Veteran that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Those letters also explained how effective dates were determined. In addition, the RO notified the Veteran in the notice letters about the information and evidence that VA will seek to provide and about the information and evidence that he was expected to provide. Therefore, the Board finds that the duty to notify has been satisfied. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. Moreover, numerous VA examinations and evaluations have been conducted during the appeal period and the evidence on file adequately addresses the matters related to the claim on appeal. In a brief presented in December 2012, the Veteran's representative maintained that the 2012 VA examination report was "woefully inadequate" due to a failure to provide any details regarding the impact the Veteran's diabetes has on his ability to work. Initially, contrary to the aforementioned argument, the 2012 examination report contained a specific finding to the effect that the Veteran's diabetes mellitus and its complications did not impact his ability to work and this finding is sufficient with respect to evaluating the claim on an extra-schedular basis. Moreover, the Veteran is already in receipt of a TDIU effective from March 2006; hence the impact of his service-connected conditions on his employability has already been considered as is reflected by this grant. Further, the rating criteria used for the evaluation of diabetes do not contemplate any impact on employability; in fact this matter is totally irrelevant in terms of the assignment of a schedular evaluation under 38 C.F.R. § 4.119, diagnostic code 7913, used for the evaluation of diabetes mellitus. Accordingly, the Board finds the 2012 VA examination report adequate for purposes of the adjudication of the Veteran's claim. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOCs, which informed them of the laws and regulations relevant to the Veteran's claim. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Background The Veteran filed an original service connection claim for diabetes mellitus in March 2, 2004. VA records reflect that diabetes mellitus was initially diagnosed in 1996 (Volume 2). Private medical records in Volume 1 and II dated from 1999 to 2004 include a diabetes nutrition therapy report of April 2002, reflecting that a special diet/meal plan was discussed with the Veteran. A history of a new onset of diabetes mellitus is noted in a June 2002 record. A November 2002 ophthalmology record references a 5 year medical history of diabetes mellitus. An inpatient admission report of October 2003, includes a listed diagnosis of diabetes mellitus Type II, without complications, noninsulin dependent, not uncontrolled. A VA examination of the heart was conducted in June 2004. The report revealed that the Veteran had been diagnosed with diabetes and had been started on Metformin the previous month. During a VA examination of November 2004, the Veteran complained of a 5 year history of erectile dysfunction. Erectile dysfunction, unlikely to be due to diabetes, but likely secondary to medication being used to treat hypertension and a heart condition, was diagnosed. By a rating decision issued in January 2005, the RO granted service connection for diabetes mellitus, type II, associated with herbicide exposure, and assigned an initial 10 percent disability rating, effective from March 2, 2004. Service connection was also established for erectile dysfunction, secondary to service-connected coronary artery disease and hypertension. In a February 2005 statement, the Veteran indicated that he was taking an oral hypoglycemic agent and had been placed on a restricted diet. In January 2006, evidence was received indicating that the medication Metformin had been started for treatment of diabetes, effective from May 26, 2004. By rating action of May 2006, an increased evaluation of 20 percent was granted for diabetes mellitus, type II, effective from May 26, 2004. Pursuant to a February 2010 Board remand, additional evidence was added to the file which includes an October 2004 report from Dr. H.S.J. indicating that the Veteran's medical problems included noninsulin dependent diabetes, which was being treated with Metformin. A VA examination for diabetes was conducted in July 2010. A history of diabetes diagnosed in 2004 or so was reported. The course since onset was described as stable and treatment was Glucontrol was reported. The report indicated that the Veteran stated that he was on steroids following artery bypass and that while the steroids were tapering, he might be put on short-term insulin (but not for treatment of diabetes). The examiner indicated that the Veteran was on a restricted diet, but had no restrictions on performing strenuous activities. There were no reported episodes of hypoglycemic reactions or of ketoacidosis. In September 2011, an addendum to the July 2010 VA examination report was issued. Therein, the examiner opined that bilateral peripheral neuropathy of the lower extremities was a complication secondary to diabetes. The examiner also determined that diabetes had no effect on a usual occupation and only mild affect on activities such as chores, sports, exercise, and recreation. By rating action of October 2011, service connection was established for cataracts, kidney disease, and neuropathy of both lower extremities, all of which were found to be secondary to service-connected diabetes. Pursuant to a May 2012 remand, additional records were received from Fort Campbell where he received regular treatment for his diabetes mellitus; VA records dated from 1994 to September 2011 were also added to the file. While these records reflect on-going treatment for diabetes, none of the records reflected that the Veteran's diabetes required insulin or regulation of activities. A VA examination was conducted in August 2012. The report reflected that the Veteran's treatment regimen consisted of a restricted diet and a prescribed oral hypoglycemic agent, without insulin use. It was specifically found that regulation of activities was not required as part of the medical management of diabetes. There were no reported episodes of hypoglycemic reactions or of ketoacidosis during the last 12 month period. The examiner noted that the Veteran had erectile dysfunction as a complication of diabetes. It was concluded that the Veteran's diabetes mellitus and its complications did not impact his ability to work. Analysis Service connection is in effect for diabetes, assigned an initial rating of 10 percent from March 2, 2004 to May 25, 2004, and of 20 percent from May 26, 2004, forward. The Veteran's claim for a higher disability rating for diabetes was placed in appellate status by his disagreement with the initial rating award. In such circumstances, separate ratings may be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings, as will be further explained herein. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Specifically, the Veteran seeks entitlement to an initial rating in excess of 10 percent for the diabetes from March 2, 2004 to May 25, 2004; and in excess of 20 percent from May 26, 2004, forward. Disability ratings 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. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. 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. 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). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the present appeal. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entirety of the appeal period, the Veteran's diabetes has been evaluated under Diagnostic Code 7913. Diagnostic Code 7913 provides that diabetes mellitus manageable by restricted diet warrants a 10 percent disability rating. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 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 warrants a 60 percent disability rating. 38 C.F.R. §4.119, Diagnostic Code 7913. Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under code 7913. Note (2): When diabetes mellitus has been conclusively diagnosed, do not request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Having reviewed the evidence pertinent to the appeal period, the Board concludes that staged ratings are appropriate with respect to this claim. Clinical records indicate that by diabetes was initially diagnosed in approximately 1996. The Veteran's service connection claim for diabetes mellitus was not filed until March 2, 2004 and as such, this date marks the beginning of the appeal period. Evidence pertinent to the time period extending from March 2, 2004 until May 25, 2004 reflects that the Veteran was on a restricted diet for treatment of diabetes, without any indication of restriction or activities or medication use, to include an oral hypoglycemic agent or insulin. As there was no indication that the Veteran was on medication for diabetes prior to May 26, 2004, there is accordingly, no basis for assigning an initial rating in excess of 10 percent prior to that time, and to this extent, this component of the claim is denied. Evidence reflects that effective from May 26, 2006, the medication Metformin was prescribed for treatment of diabetes, warranting the assignment of a 20 percent evaluation from that date forward. Pursuant to 38 C.F.R. §4.119, diagnostic code 7913, diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent disability rating. However, since May 26, 2004, there is no indication that regulation of activities has been medically indicated at any point. With regard to the criterion involving regulation of activities, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (holding that medical evidence is required to show that occupational and recreational activities have been restricted, for purposes of Diagnostic Code 7913 providing a 40 percent disability rating for diabetes when the diabetes requires insulin, restricted diet, and regulation of activities). In this regard, VA examinations conducted in June 2004, July 2010, and August 2012 failed to include such a finding. As there is no showing during any portion of this appeal period that the Veteran's diabetes required regulation of activities, there is no basis for the assignment of an evaluation in excess of 20 percent. Similarly, since May 26, 2004, there is no indication that the Veteran's diabetes has required insulin use. In this regard, VA examinations conducted in June 2004, July 2010, and August 2012 failed to include such a finding, nor does the Veteran even contend that he has used insulin for treatment of diabetes at any time during the applicable appeal period. As there is no showing during any portion of this appeal period that the Veteran's diabetes requires the use of insulin, there is no basis for the assignment of an evaluation in excess of 20 percent. The Board also observes that during the entire appeal period extending from March 2, 2004, there have been no documented episodes of ketoacidosis or hypoglycemic reactions; accordingly, no higher rating is warranted on that basis. The Board notes that complications identified as neuropathy the lower extremities bilaterally, cataracts, and kidney disease, have all been associated with diabetes and service connection already has been established for each of these conditions. In addition, while erectile function has also been associated as a possible complication of diabetes, service connection was established for this condition as secondary to service-connected coronary artery disease and hypertension in a January 2005 rating action. The Veteran has not identified, nor do the clinical records reveal, any additional complications which are associated with diabetes. Having considered the concept of staged ratings in this case as discussed in Fenderson, supra, the Board concludes that entitlement to an initial disability rating in excess of 10 percent for diabetes, from March 2, 2004 to May 25, 2004, is not warranted; nor is a disability rating in excess of 20 percent from May 26, 2004, forward. In reaching these conclusions, the Board has considered the benefit-of-the-doubt doctrine as applicable. Gilbert, 1 Vet. App. 49, 53-56 (1990); See 38 U.S.C.A. § 5107(b) (West 2002). Extra-schedular Consideration and TDIU The United States Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must 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 RO or Board must determine whether the claimant's exceptional 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. The Veteran's manifestations of his service-connected diabetes mellitus Type II cause impairment that is contemplated by the rating criteria. Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations for diabetes are, therefore, adequate. Referral for consideration of an extraschedular rating is, therefore, not warranted. Further there have been no periods of hospitalization associated with the condition since 2004. Further, there is no indication of marked interference with employment due to diabetes and its complications. In this regard, the 2012 VA examination report reflects that the examiner concluded that the Veteran's diabetes mellitus and its complications did not impact his ability to work The Board also observes that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) has already been raised in this case, and a TDIU was granted in a December 2006 rating action, effective from March 9, 2006 (at which point the schedular requirements for a TDIU were met). Accordingly, that matter has been addressed and resolved in the Veteran's favor and need not be further addressed here. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the portion of the appeal period extending from March 2, 2004 to May 25, 2004, an initial disability rating in excess of 10 percent for diabetes mellitus Type II, is denied. For the portion of the appeal period extending from May 26, 2004, forward, a disability rating in excess of 20 percent for diabetes mellitus Type II, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs