Citation Nr: 1306709 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-42 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an increased disability evaluation (rating) for Diabetes Mellitus, Type II (DM). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from April 1966 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Boise, Idaho. FINDINGS OF FACT DM requires the use of an oral hypoglycemic and a restricted diet for the entire rating period. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the entire increased rating period, the criteria for a 20 percent evaluation for DM, and no higher, have been met. 38 U.S.C.A. § 1155 (West 2002 &Supp. 2011); 38 C.F.R. §§ 3.321(b)(1), 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A VCAA notice letter sent in December 2009 satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information on disability ratings and effective dates required by Dingess. The Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA and private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant as it relates to his DM. The Veteran was afforded VA examinations in April 2010 and July 2010. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examinations to be adequate for rating purposes. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and by being afforded the opportunity to appear at a hearing if so desired. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Rating for DM Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for DM are governed by criteria and set forth in 38 C.F.R. § 4.119, Diagnostic Code 7913. A rating of 10 percent is assigned for DM that is managed by a restricted diet only. A rating of 20 percent is assigned for DM requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A rating of 40 percent is assigned for DM requiring insulin, a restricted diet, and regulation of activities. A rating of 60 percent is assigned for DM requiring insulin, restricted diet, and regulation of activities and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) and involving 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. Note (1) to DC 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under DC 7913). Noncompensable complications are considered part of the diabetic process under DC 7913. In this case, service connection for DM was granted in an October 2009 rating determination, with a 10 percent disability evaluation being assigned at that time. In December 2009, the Veteran filed a claim for increased rating, requesting that his disability evaluation be increased. The Veteran maintains that an evaluation in excess of 10 percent is warranted for his service-connected DM. He reported that he was prescribed oral hypoglycemic agents. In support of his claim, the Veteran submitted a December 2009 treatment record from his private physician S. R., M.D., which contained a diagnosis of DM. Dr. R. indicated that he was going to initiate treatment with Glucophage to help give some stability to sugars throughout the day. The Veteran was prescribed Metformin for his DM. The Veteran was afforded a VA examination in February 2010. It was noted that the Veteran's DM had had its onset in August 2008. The Veteran was noted to be on oral medication at the time of the examination and his condition was described as stable. The examiner indicated that a Glucose Tolerance Test (GTT) DM test had been performed on the Veteran which revealed he was not diabetic but that he remained on diabetic medication. The Veteran was noted to have not had any episodes of hypoglycemic reaction or ketoacidosis. It was also indicated that the Veteran did not have to follow a restricted diet nor was he restricted in his ability to perform strenuous activities. While the examiner indicated that the Veteran did not have DM, in a February 2010 addendum report, the Veteran was noted to have impaired glucose tolerance. The Veteran was afforded an additional VA examination in July 2010. The examiner indicated that the Veteran was placed on Metformin in July 2009 and this had caused him to have what sounded like severe episodes of hypoglycemia. The examiner observed that a GTT had previously shown that the Veteran responded at one hour with a high blood sugar of 247 but it dropped away very quickly, with the two and three hour testings in the low to normal range. He indicated that the Veteran's current treatment was diet alone, as Metformin had been stopped in November 2009. The examiner stated that she was not sure what was going on with the Veteran at this point, whether he had hypoglycemia or dropping of blood pressure or heart irregularity among other possibilities. The examiner noted that there had been episodes of hypoglycemic reactions/ketoacidosis but that none of these had required any hospitalization and the Veteran was not going into clinic for care with any episode. The Veteran was noted to have been instructed to follow a restricted diet, but he was not restricted in his ability to perform strenuous activities. The examiner in July 2010 indicated that a GTT study had been ordered but it had not been performed. The examiner stated that at this point there was not a definite diagnosis of DM. The examiner reported that it was not completely clear what was causing the Veteran's symptoms as there could be multiple things going on. She indicated that the gastric bypass was more likely the cause as it would affect his blood sugar level and his blood pressure level if he now had a bowel disease. The examiner stated that there was a strong history of diabetes in the Veteran's family and that with the bypass surgery, the Veteran could go into diabetes. The examiner noted that the Veteran was on a diet due to bypass gastric surgery and for possible diabetes and iron deficiency. He was noted to have been given Metformin and then taken off it. The examiner stated that the Veteran did not have a clear diagnosis as to what was happening at present. In July 2010, the Veteran was given diabetic education at VA and re-instructed as to what diabetes was and encouraged to eat small frequent meals with whole foods, while limiting starches. In conjunction with his claim, the Veteran submitted an April 2011 treatment record from the Diabetes and Endocrinology Center which contained a diagnosis of DM, unchanged. It was indicated that Metformin had been removed from the medication list and had been replaced by Precose, another prescription drug used in the control of DM. In a June 2011 treatment record, the Veteran was again diagnosed as having DM, with fair dietary compliance being reported. He was also noted to still be taking Precose. The Board notes that in conjunction with his December 2009 request to reopen, the Veteran submitted a treatment record demonstrating that he had been prescribed Metformin, a prescription drug used in the control of DM. The Veteran was noted to still be taking Metformin at the time of his February 2010 VA examination. The Board observes that the February 2010 VA examiner indicated that the Veteran did not have DM. The Board further notes that the July 2010 VA examiner indicated that the Veteran did not have a definite diagnosis of DM and that she was not sure what was going on with the Veteran. However, she also stated that the Veteran was on a restricted diet and that this was possibly due in part to his DM. The Board then notes that the Veteran was subsequently diagnosed with DM in April and June 2011 by the Diabetes and Endocrinology Clinic. As service connection is currently in effect for DM, not having been severed, the question remains as to what is the appropriate disability evaluation that should be assigned. As of December 2009, the Veteran was taking prescription medication for DM. The Veteran was also noted to be taking DM medication at the time of the February 2010 VA examination. While the July 2010 VA examiner indicated that the Veteran was not taking DM medication, the dates noted as to when the medication was supposedly stopped and started do not correspond with the treatment records that have been associated with the claims folder; however, the examiner did indicate that the Veteran was on a restricted diet. Furthermore, in the April 2011 private treatment record, it was indicated that the prescription drug Metformin had been removed from the medication list and was being replaced by Precose. Thus, the evidence is at least in equipoise as to whether the Veteran has been taking prescription medication for his DM throughout the course of the appeal. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's DM has required taking oral medication and following a restricted diet throughout the course of the appeal. Thus, a 20 percent disability evaluation for DM is warranted under Diagnostic Code 7913. The assignment of a 20 percent rating for DM is for the entire rating period. While the evidence shows the use of an oral agent and a restricted diet, the Board concludes that the evidence does not support a rating in excess of 20 percent for any period. For no period does the evidence show that use of insulin is required nor has there been any demonstration that the service-connected DM requires regulation of activities. See Camacho v. Nicholson, 21 Vet. App. 360 (2007) (holding that the criteria for rating diabetes mellitus are conjunctive, and that each element of the criteria is needed to meet the requirements for the specified evaluation); 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). In this regard, there have been no reports or indications of insulin use, and it has not been reported by either the Veteran or medical professionals that the Veteran is restricted in his ability to perform strenuous activities. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. See 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). In Camacho, it was held that the evidence must show that it is medically necessary for a claimant to avoid strenuous occupational and recreational activities. The Veteran's diabetes has been found to be manifested by the use of an oral agent and dietary restrictions, but not by the use of insulin or the regulation of activity as is required for a higher rating of 40 percent under DC 7913. While the Veteran requires the use of a hypoglycemic agent and a restricted diet, as indicated, the evidence must demonstrate the use of insulin and "regulation of activities" to warrant a 40 percent rating under Diagnostic Code 7913. There have also been no episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month at any time, also requirements for higher disability evaluations. The record shows that the DM does not meet or more nearly approximate these criteria at any time during the rating period. For these reasons, the Board finds that the criteria for a rating in excess of 20 percent for diabetes under DC 7913 have not been met for any period. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for DM. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant'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." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal period under consideration is contemplated by the rating schedule. The Veteran's DM corresponds to the schedular criteria for the assigned disability evaluations. The schedular rating criteria (Diagnostic Code 7913) specifically rate on a requirement for insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet, as well as other symptoms and criteria the Veteran does not meet. For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's DM and no referral for an extraschedular rating is required. Finally, the Veteran has indicated that he is employed. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Veteran or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 20 percent disability rating for DM, and no higher, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs