Citation Nr: 1307779 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 12-16 225 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to service connection for glaucoma to include as secondary to diabetes mellitus, type II. 3. Entitlement to service connection for an enlarged prostate to include as secondary to diabetes mellitus, type II. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from October 1965 to July 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey, which granted service connection for diabetes mellitus, type II, and assigned a 20 percent disability rating effective July 9, 2009. In December 2009, the Veteran filed a notice of disagreement (NOD) on the issue of entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. The RO issued a statement of the case (SOC) in May 2012 continuing the 20 percent disability evaluation for diabetes mellitus, type II. In an April 2012 rating decision, the RO, in pertinent part, denied entitlement to service connection for glaucoma, and entitlement to service connection for an enlarged prostate. In the Veteran's June 2012 substantive appeal (VA Form 9), submitted on the issue of an evaluation in excess of 20 percent for diabetes, the Veteran stated that the RO failed to consider his other conditions (glaucoma, ischemic heart disease, enlarged prostate, and low testosterone) when assigning the 20 percent evaluation for diabetes. The Board has construed this statement as a NOD to the April 2012 rating decision which denied service connection for glaucoma and an enlarged prostate both claimed to be secondary to service-connected diabetes mellitus. It is noted that service connection was granted for anxiety, not otherwise specified with sleep problems by rating action in April 2012 and for coronary artery disease by rating action in September 2012. The grant of service connection is considered a full grant of the benefit sought with regard to those claims, the Veteran has not submitted a notice of disagreement as to the ratings assigned and no issue with regard to anxiety or coronary artery disease (to include ischemic heart disease) is currently before the Board for adjudication. Additionally, while the Veteran's representative mentioned hypertension and cholesterol in the December 2012 Informal Hearing Presentation, service connection for those issues were denied by a decision dated in April 2012. No notice of disagreement has been submitted with regard to those conditions and they are not in appellate status. In a December 2012 statement, the Veteran's representative asserts that the Veteran's purported secondary conditions are "inextricably intertwined" with the original issue of diabetes mellitus. The Veteran's representative has asked the Board to remand the case in order for the RO to clarify the issues raised by the evidence of record. The Board finds that the issue of an initial evaluation in excess of 20 percent for diabetes mellitus is not inextricably intertwined with the Veteran's secondary service connection claims. As will be discussed fully below, compensable complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. In this case, because the criteria for rating higher than 20 percent each require regulation of activities, which has not been demonstrated, a higher rating for diabetes mellitus cannot be established on the basis of any secondary condition. Therefore the claim for an increased rating will be adjudicated below. The issue of entitlement to service connection for low testosterone to include as secondary to diabetes mellitus, type II, has been raised by the record in the June 2012 substantive appeal, but 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. The issues of entitlement to service connection for glaucoma to include as secondary to diabetes mellitus, type II, and entitlement to service connection for an enlarged prostate to include as secondary to diabetes mellitus, type II, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's diabetes mellitus, type II, has been managed by the use of oral hypoglycemic agent and a restricted diet; regulation of activities is not required to control diabetes mellitus, type II. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify & Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102 , 3.156(a), and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1) (2012) . The record shows that through a VCAA letter dated October 2009 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection. The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Further, the notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). In this case, the October 2009 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disabilities on appeal. The Board also finds that there has been substantial compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment records, and the Veteran's statements. 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 38 C.F.R. § 3.159(c). The Veteran was afforded VA examinations in November 2009 regarding the diabetes mellitus disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the pertinent medical history was noted by the examiner, 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. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Board has considered whether staged ratings are for consideration. The Board finds, that a staged rating is not warranted with respect to the Veteran's claim for an increased rating for diabetes mellitus, type II. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Veteran is currently assigned a 20 percent disability rating for diabetes mellitus, type II, under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is assigned where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. Id. A 40 percent rating is assigned where insulin, restricted diet, and regulation of activities is required. Id. A 60 percent disability rating is assigned for 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. Id. A 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations 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. Id. According to Note (1) of Diagnostic Code 7913, compensable complications of diabetes mellitus are to be evaluated 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 Diagnostic Code 7913. After carefully reviewing the evidentiary record, the Board finds that a preponderance of the evidence is against a finding that an initial evaluation in excess of 20 percent is warranted for the Veteran's diabetes mellitus, type II. A private treatment record from Dr. A.F., dated September 2008, diagnosed the Veteran with non-insulin diabetes mellitus, type II, and his treatment included oral medication of Metformin, 1000 mg. In August 2009, Dr. R.K. stated the Veteran had a history of diabetes and listed Metformin as one of his treatment medications. Treatment records from Finger Lakes Community Eye Center, dated March 2010, noted the Veteran as having non-insulin dependent diabetes. VA outpatient records date up to April 2012 include a December 2012 outpatient treatment record indicating that the Veteran golfed for exercise. Those records do not include an indication of regulation of activities. In November 2009, the Veteran underwent a VA examination in connection with his claim for service connection for diabetes mellitus, type II. Following the examination and review of the Veteran's claims file and medical history, the examiner noted that the Veteran denied any episodes or hospitalization for ketoacidosis or hypoglycemia. The Veteran stated that his treatment included 1000 mg of Metformin. The Veteran denied any restrictions on his activities due to diabetes. The examiner further noted that the Veteran's diabetes provided no limitation on his employment or his activities of daily living. As noted above, the medical evidence of record does not show the Veteran's type II diabetes mellitus requires the treatment of insulin, nor has the Veteran indicated that such treatment is required for his service-connected disability. The Board further finds that the evidence of record does not demonstrate that regulation of activities is required to control the Veteran's diabetes mellitus disability. Notably, the record does not demonstrate that the Veteran's diabetes mellitus has increased in severity subsequent to the November 2009 VA examination. Therefore, the criteria for an initial evaluation in excess of 20 percent for diabetes mellitus, type II, have not been met. See 38 C.F.R. § 4.119, Diagnostic Code 7913. As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id. The evidence of record does not reveal that the Veteran's diabetes disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal has been evaluated under the applicable Diagnostic Code that has specifically contemplated the level of occupational and social impairment caused by service-connected diabetes disability. The Veteran's symptoms and medications and diet requirements are specifically enumerated under Diagnostic Code 7913. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER An initial rating for diabetes mellitus, type II, in excess of 20 percent is denied. REMAND The Veteran's June 2012 substantive appeal (VA Form 9), stated that the RO failed to consider his other conditions (glaucoma, ischemic heart disease, enlarged prostate, and low testosterone) when assigning the 20 percent evaluation for diabetes mellitus. As mentioned in the introduction, the Board has construed the Veteran's June 2012 statement as a timely NOD with the April 2012 rating decision, which denied entitlement to service connection for glaucoma on a direct and secondary basis, and denied entitlement to service connection for an enlarged prostate on a direct basis. See 38 U.S.C.A. § 7105(b)(2) (West 2002); 38 C.F.R. § 20.201 (2012) (defining a notice of disagreement). While special wording is not required, a NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201; Gallegos v. Principi, 283 F.3d 1309, 1313-15 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written determines whether a written communication constitutes a valid NOD. Jarvis v. West, 12 Vet. App. 559, 561 (1999). Because the Veteran filed a NOD to the issues of entitlement to service connection for glaucoma to include as secondary to diabetes mellitus, type II, and entitlement to service connection for an enlarged prostate to include as secondary to diabetes mellitus, type II, the Veteran is entitled to a SOC addressing both issues. Manlincon v. West, 12 Vet. App. 238 (1999); Gibson v. Peake, 22 Vet. App. 11 (2007). When a claimant has filed a NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). Accordingly, the case is REMANDED for the following action: The AMC/RO should issue a Statement of the Case addressing the claim for entitlement to service connection for glaucoma to include as secondary to diabetes mellitus, type II, and entitlement to service connection for an enlarged prostate to include as secondary to diabetes mellitus, type II. The Veteran and his representative should also be advised that, for the Board to have jurisdiction in the matter, a timely substantive appeal responding to the SOC must be filed. Should the Veteran or his representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs