Citation Nr: 1308686 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-21 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a rating higher than 20 percent for diabetes mellitus, type II. 2. Entitlement to a rating higher than 20 percent for osteomyelitis, residuals of a fracture to the right tibia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active duty service from August 1967 to August 1970, including service in the Republic of Vietnam from March 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. Jurisdiction over this matter was transferred to the Boston RO immediately after the issuance of the January 2007 rating decision. After the Veteran appealed the decision, a June 2007 rating decision awarded an increased rating from 10 to 20 percent for the osteomyelitis, effective in June 2006. The Veteran continued his appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The Veteran failed to appear for his requested Board hearing, which was scheduled at the RO in October 2009. His hearing request is, therefore, deemed to be withdrawn. 38 C.F.R. § 20.704(d) (2012). In February 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, D.C., for additional development. The AMC completed the additional development as directed, continued to deny higher ratings for the disabilities in issue, and returned the case to the Board for further appellate review. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and the pertinent records there which are not also in the paper claims file have been reviewed and considered by the AMC/RO, as noted in the September 2012 Supplemental Statement of the Case. Thus, there is no need to seek a waiver from the Veteran or to remand for AMC or RO review consideration. 38 C.F.R. § 20.1304 (2012). Any further development or adjudication of this matter should take into account this paperless claims file. FINDINGS OF FACT 1. The AMC completed the additional development as directed in the February 2011 Board remand by obtaining the additional records identified and by arranging VA examinations of the Veteran. 2. The preponderance of the evidence of record shows the Veteran's diabetes mellitus is managed with oral agents and a restricted diet. Limitation or regulation of activities to manage his diabetes has not been recommended during this rating period. 3. The Veteran's osteomyelitis has manifested with an active infection during the prior five years but without involucrum or sequestrum. Neither have any constitutional symptoms manifested. CONCLUSIONS OF LAW 1. The requirements for an evaluation higher than 20 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.119, Diagnostic Code (DC)7913 (2012). 2. The requirements for an evaluation higher than 20 percent for osteomyelitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Court Of Appeals For Veterans Claims has also held 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). In a letters issued in January and August 2006, prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claims for increased ratings. Both letters also satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. He was informed that VA provide ratings based on the rating schedule and was given examples of the evidence he could submit. For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was 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). Nevertheless, the Veteran was advised to submit all evidence in his possession in the letters. The Veteran has substantiated his status as a veteran. He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claims, by the January and August 2006 letters. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, VA treatment records, private medical records, and the records related to his receipt of benefits from the Social Security Administration. Further, the Veteran was provided VA examinations before and pursuant to the Board remand. Neither the Veteran nor his representative asserts that there are additional records to be obtain. In sum, there is no error that precludes the Board from addressing the merits of the appeal. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA 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. § 4.1. Disabilities must be reviewed in relation to their history. Id. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when either disability may have been more severe than at other times during the course of the claim on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis Diabetes Mellitus By way of history, an October 2005 rating decision granted service connection for diabetes mellitus and assigned an initial 20 percent rating, effective in May 2005. VA received the Veteran's current claim for an increased rating in June 2006. Although the appeal period for the October 2005 rating decision had not expired, see 38 C.F.R. § 20.302, the Veteran's June 2006 claim did indicate any intent to appeal the October 2005 rating decision. See 38 C.F.R. § 20.201. Hence, the Board will only consider evidence received by the RO which was not considered by the 2005 decision. See 38 C.F.R. § 3.400(o)(2). The applicable rating criteria for diabetes provide that, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires 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; and, a 100 percent rating is applicable when the diabetes requires 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. 38 C.F.R. § 4.119, DC 7913. The August 2006 VA examination report reflects the examiner reviewed the claims file as part of the examination. The Veteran denied any problems with hypoglycemia or having been hospitalized for diabetes. He reported further that he saw his primary care provider once a month for diabetes, and that he followed a strict diabetic diet. The Veteran complained of right shin pain related to slow healing osteomyelitis, but he denied other wounds, ulcers, or numbness or tingling in the fingers or toes. He also denied erectile dysfunction. The examiner noted the Veteran's medication was Glyburide 5 mg twice a day. The examiner noted the Veteran was not restricted in his ability to perform strenuous activities, and that there were no episodes of hypoglycemic reactions or ketoacidosis. Other than diabetic-related retinopathy, the examiner noted that there were no other related abnormalities. Physical examination revealed no diabetic skin abnormalities, motor, or sensory loss. Deep tendon reflexes were 2+ throughout. The examiner opined that there was no significant impact of the disease on the Veteran's occupation. The objective findings on clinical examination show the Veteran's diabetes to have more nearly approximated the assigned 20 percent rating. 38 C.F.R. § 4.119, DC 7913. The VA outpatient records for the period between the August 2006 examination and the 2011 examination reflect that the Veteran was not instructed to limit his activities to manage his diabetes. Hence, a higher rating was not met or approximated. Id. The Board remanded the case so the current severity of the Veteran's diabetes could be determined. The April 2011 examination report reflects the examiner conducted a review of the claims file as part of the examination. The examiner noted the Veteran took Glyburide, aspirin, and Crestor for his diabetes, and the Veteran did not require insulin. The examiner also noted the Veteran had not required hospitalization for hypoglycemia, ketoacidosis, or hypoglycemic reactions; his activities were not restricted due to his diabetes; and, the Veteran should be seen twice a year for his diabetes. Physical examination revealed no skin abnormalities related to the diabetes. Motor strength, sensory, and reflex examinations were normal. Muscle tone was normal, and there was no muscle atrophy. Renal examination was also normal, as shown on the laboratory test results. The findings at the April 2011 examination again showed the Veteran is directed to follow a strict diabetic diet and take Glyburide. The Veteran's care plan includes exercise and physical activity. In fact, his mental health records of July 2008 note the Veteran's reports that his daily walks helped ease his anxiety. In light of the preponderance of the evidence, the Board finds the Veteran's diabetes mellitus, has continued to more nearly approximate the assigned 20 percent rating for the entire rating period. A rating higher than 20 percent has not been met or approximated because, although the Veteran requires oral agents and a restricted diet, he is not limited in his activities due to the diabetes. As such, the Veteran does not meet the criteria for a rating higher than 20 percent rating under 38 C.F.R. §§ 4.1, 4.10, 4.119, DC 7913. In the absence of regulation of activities, there is simply no basis for a higher rating at this time. A July 2012 rating decision granted service connection for diabetic retinopathy with an initial noncompensable rating. The rating criteria provide that noncompensable complications are part of the diabetic process. 38 C.F.R. § 4.1149, DC 7913 Note (1). The Board also notes the Agency of Original Jurisdiction (AOJ) has taken cognizance of whether the Veteran has diabetic-related hypothyroidism, which also would be separately rated. Osteomyelitis By way of history, an April 1971 rating decision granted service connection for osteomyelitis as residual of a right tibia fracture and assigned an initial 10 percent rating, effective in August 1970. VA received the Veteran's current claim for an increased rating in June 2006. Osteomyelitis is rated under DC 5000, which pertains to acute, subacute, or chronic osteomyelitis. Osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms warrants a 100 percent rating. A 60 percent rating is assigned with frequent episodes of osteomyelitis with constitutional symptoms. A 30 percent rating is assigned for osteomyelitis with definitive involucrum or sequestrum, with or without discharging sinus. A 20 percent rating is assigned for osteomyelitis with discharging sinus or other evidence of active infection within the past 5 years. A 10 percent rating is assigned for inactive osteomyelitis, following repeated episodes, without evidence of active infection in past 5 years. 38 C.F.R. § 4.71a, DC 5000. Note (1) to DC 5000 directs that a rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. Id. Note (2) to DC 5000 directs that the 20 percent rating on the basis of activity within the past 5 years is not assignable following the initial infection of active osteomyelitis with no subsequent reactivation. The prerequisite for this historical rating is an established recurrent osteomyelitis. To qualify for the 10 percent rating, 2 or more episodes following the initial infection are required. This 20 percent rating or the 10 percent rating, when applicable, will be assigned once only to cover disability at all sites of previously active infection with a future ending date in the case of the 20 percent rating. Id. A June 2005 orthopedic consult entry notes the Veteran had not experienced any right leg problems for over 20 years. Approximately eight months prior to the consult, the Veteran started to develop right leg pain and burning. The pain was present only during weight bearing, and it resolved when weight was removed, and the Veteran denied any history of trauma prior to the onset of the pain. The Veteran reported Tylenol did not provide much relief. The examiner noted the Veteran's recent diagnosis with diabetes mellitus. Physical examination of the right lower extremity revealed a well healed incision over the anteromedial aspect of the tibia. One small area of the scab appeared to be superficial in nature, and there was tenderness to palpation over the old scar. There was no instability to varus or valgus stress, and right knee and ankle range of motion (ROM) was normal. X-rays were read as having shown an area of sclerotic bone in the mid one-third of the tibia that was consistent with old episodes of osteomyelitis. There was no frank evidence of current osteomyelitis by x-ray. The examiner diagnosed history of right tibia osteomyelitis with current pain, but concern for recurrent osteomyelitis in light of the Veteran's then new diagnosis of diabetes. The examiner ordered a bone scan. The June 2005 bone scan report notes the abnormal focal uptakes shown corresponded to the sclerotic changes seen on the earlier x-ray; but it was a nonspecific finding that was supportive of osteomyelitis but not diagnostic. A gallium scan was recommended. The abnormalities noted in the right knee and acromioclavicular joint were likely degenerative or post-traumatic in nature. The Board notes the Veteran's VA outpatient records note his upper extremity symptoms were due to a work related lifting injury. An October 2005 orthopedic follow-up noted the Veteran reported on-and-off pain that was associated with long distance walking. He denied any increased redness, discharge, or warmth; and, he did not report any change in his pain. The examiner noted the bone scan done with gadolinium showed a faint focus of increased uptake in a lesion of the right proximal tibia which was significantly less intense than what was seen on the bone scan. The examiner noted the findings ruled out a diagnosis of acute osteomyelitis. The examiner continued the Veteran on Ibuprofen and told the Veteran surgery was not indicated, as there were no signs of acute osteomyelitis. He also told the Veteran he might continue to have problems with chronic osteomyelitis because of his diabetes. The Board finds the medical evidence of record shows the Veteran's osteomyelitis did not manifest in an active phase as of the October 2005 orthopedic consult, as clinical examination did not reveal any discharging sinus, and diagnostic tests did not reveal an active infection. Thus, the Veteran's osteomyelitis more nearly approximated the assigned 10 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5000. The March 2006 examination report notes the Veteran's report that his right tibia had been constantly painful for two years, but there had not been any drainage or other active signs of infection. The Veteran reported further that if he walked for a long period of time-20 or 30 minutes, or riding his bike for 45 minutes, the pain became strong at that time, and he had to return home and elevate his leg and take Ibuprofen. On a scale of 1 to 10, the Veteran assessed his pain as 4-5/10 when at rest. When most painful, he assessed his pain as 8/10. He reported it had been several years since he last took antibiotics. The examiner noted the Veteran had no constitutional symptoms that suggested disseminated bone disease or infection. Physical examination revealed the Veteran's gait was symmetric, and his stance revealed his pelvises were level. Examination of the right tibia revealed an anterior scar of 12.5 cm at its widest point by 2.5 cm. At the upper end of the scar was a medial oblique further incision that measured 4 cm; and, a lateral ovoid incision of 1.5 cm by 1 cm. All of the scars were well healed, but in the upper portion of the vertical incision, the area of greatest width was both red and tender to direct pressure. The examiner noted recent x-rays were read as having shown an area of slight expansion with thickened cortices and at least one well-corticated central ovoid in the junction between the proximal and middle third of the right tibia. The examiner diagnosed chronic osteomyelitis, right tibia, presently inactive. In light of the fact the objective findings on clinical examination revealed no infection or other active process, the preponderance of the evidence shows the Veteran's osteomyelitis continued to more nearly approximate the assigned 10 percent rating, as the April 2006 rating decision noted. 38 C.F.R. § 4.71a, DC 5000. The Board notes the examiner's finding of the reddened and tender scar, as well as the June 2005 notation that a part of the scar was tender to palpation. On the other hand, the Veteran is not service connected for the scar residual of his prior right tibia surgery. Further, as set forth later in this decision, subsequent examinations found no tenderness about the scar area, especially after the Veteran was prescribed antibiotics. The September 2006 examination report reflects the examiner reviewed the claims file as part of the examination. The Veteran reported his current treatment was wound care with gauze sponges daily, with only poor response. Physical examination revealed the osteomyelitis was present and active but was in the convalescence period. There was no jaundice or anasarca. September 2006 x-rays, compared to the May 2005 x-rays, showed no significant interval change. There was no destructive process to suggest acute osteomyelitis. A February 2007 VA Discharge Summary notes the Veteran denied having noticed any fevers, but he had experienced chills and night sweats since his pain started. A triple phase bone scan was consistent with acute osteomyelitis of the proximal one-third of the right tibia, and the Veteran was called to be admitted for further evaluation. Physical examination of the right lower extremity revealed well healed scars, and there was no tenderness over that area. There was exquisite tenderness over the tibial tuberosity and surrounding areas, but there was no tenderness, warmth, or effusion in the knee joint. There was no passive limitation of motion of the right knee, and the left lower extremity was unremarkable. The Veteran was started on a six-week regimen of Bactrian while hospitalized. Orthopedics reviewed the CT films and opined there was no evidence of a plateau fracture. Swelling and redness of the right ankle resolved after two days. An April 2007 orthopedic surgery entry notes the Veteran reported he had been on oral antibiotics, and he had experienced obvious improvement in his pain as compared to his last visit; but he still complained of on-and-off pain, especially at night. The entry also notes the Veteran had been under the care of infectious disease division which planned to repeat the diagnostic tests. Physical examination revealed no tenderness over the proximal aspect of the tibia, but minimal redness could be appreciated. The examiner told the Veteran that the fact the abscess was not increasing in size and his pain was better mitigated against surgery. Thus, the examiner encouraged the Veteran to return to infectious disease in order to continue his suppressive antibiotic for a long time. The Veteran agreed. The examiner did not indicate that the noted left knee symptomatology was related to the right tibia osteomyelitis. Upon receipt of the updated medical reports, a June 2007 rating decision awarded an increased rating from 10 to 20 percent, effective in June 2006. The Board finds the evidence of record shows a higher rating was not met or approximated, as there was no evidence of definite involucrum or sequestrum. 38 C.F.R. § 4.71a, DC 5000. As noted earlier in this decision, the Board remanded for an examination. The April 2011 examination report reflects the examiner reviewed the claims file as part of the examination. The examiner noted the February 2007 treatment for acute osteomyelitis and that the Veteran had improved since, but he still reported continued right shin pain. The examiner noted the Veteran's condition since February 2007 as stable. The Veteran's current treatment consisted of Trimethoprim/Sulfamethoxazole twice a day. The examiner noted the Veteran's report of pain, but there was no inflammation or fracture site motion or fever. The Veteran used a cane with fair effectiveness. Physical examination revealed no bone or joint abnormality. The Veteran's gait was antalgic, and his propulsion poor. He reported he could stand for 15 to 30 minutes, and walk only a few yards. There was no evidence of recurvatum, constitutional signs of bone disease, or malunion of the calcis or astragalus. The examiner also noted there was no evidence of involucrum, sequestrum, or draining sinus. An April 2011 x-ray showed no signs of current active symptoms. The examiner diagnosed chronic right tibia osteomyelitis without current involucrum, sequestrum, discharging sinus, joint involvement, or constitutional symptoms. The Board notes the examiner's diagnosis specifically excluded the symptoms that would warrant a rating higher than 20 percent for the right tibia osteomyelitis. 38 C.F.R. §§ 4.1, 4.10, 4.71a, DC 5000. The Board's review of the extensive records in the Virtual claims file do not reflect any entries that note either involucrum, sequestrum, or discharging sinus. Neither was there evidence that suggested the involvement of a joint other than the right tibia. Thus, the Board finds there is no factual basis for a staged rating for any part of the rating period on appeal, and that the Veteran's osteomyelitis has manifested at the 20 percent rate throughout the current rating period. The Board notes further that the rating criteria describe the Veteran's diabetes and osteomyelitis and their levels of severity. Hence, the Board finds the rating code anticipates both disabilities, as shown by the Board's discussion earlier in this decision. This means the Veteran's disability picture for his diabetes and osteomyelitis is not exceptional. In the absence of an exceptional disability picture, there is no factual basis for referral for consideration of higher ratings on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111 (2008). Unemployability The Board notes that the Veteran has, on occasion, reported he was unable to work due to his diabetes. The evidence of record, however, shows that it is not the case. The April 2011 examination report notes the Veteran reported he had been unemployed since 2006 due to his posttraumatic stress disorder (PTSD). The Board notes further that the Social Security Administration also determined the Veteran was disabled due to an anxiety disorder. A November 2012 rating decision awarded a 100 percent rating for PTSD, effective in January 2008. Hence, the Veteran's employability has been determined. ORDER Entitlement to a rating higher than 20 percent for diabetes mellitus, type II, is denied. Entitlement to a rating higher than 20 percent for osteomyelitis, residuals of a fracture to the right tibia, is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs