Citation Nr: 1309883	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO. 07-10 603	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus with nephropathy, retinopathy and erectile dysfunction.

2. Entitlement to a higher initial evaluation for neuropathy of the right foot, rated as 10 percent disabling from September 15, 2004 and as 20 percent disabling from December 21, 2006.

3. Entitlement to a higher initial evaluation for neuropathy of the left foot, rated as 10 percent disabling from September 15, 2004 and as 20 percent disabling from December 21, 2006.

4. Entitlement to a higher level of special monthly compensation (SMC) based on loss of use of a creative organ.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and M.B. 


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from October 1970 to January 1972 and from June 1976 to September 1980.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Veteran and M.B. testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge in December 2012. A transcript of the hearing has been associated with, and is available for review on, the Virtual VA paperless claims processing system (Virtual VA). 

Virtual VA reveals no other pertinent documents for consideration in support of these claims.



FINDINGS OF FACT

1. On December 4, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw his claim of entitlement to a higher level of SMC based on loss of use of a creative organ.

2. Although the Veteran's diabetes mellitus required insulin during the course of this appeal, from 2006 to 2008 only, it never required regulation of activities. 

3. Prior to June 1, 2006, neuropathy in the Veteran's right foot caused no more than mild nerve damage.

4. The neuropathy in the Veteran's right foot, characterized as causing moderate nerve damage since December 21, 2006, worsened as of June 1, 2006 and became severe. 

5. Prior to June 1, 2006, neuropathy in the Veteran's left foot caused no more than mild nerve damage.

6. The neuropathy in the Veteran's left foot, characterized as causing moderate nerve damage since December 21, 2006, worsened as of June 1, 2006 and became severe. 


CONCLUSIONS OF LAW

1. The criteria for withdrawal of a substantive appeal on the claim of entitlement to a higher level of SMC based on loss of use of a creative organ are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


2. The criteria for entitlement to an evaluation in excess of 20 percent for diabetes mellitus with nephropathy, retinopathy and erectile dysfunction are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.119, Diagnostic Code 7913 (2012).

3. The criteria for entitlement to an initial evaluation in excess of 10 percent for neuropathy of the right foot, from September 15, 2004 to May 31, 2006, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2012).

4. The criteria for entitlement to an initial 40 percent evaluation for neuropathy of the right foot, from June 1, 2006, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2012).

5. The criteria for entitlement to an initial evaluation in excess of 10 percent for neuropathy of the left foot, from September 15, 2004 to May 31, 2006, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2012).

6. The criteria for entitlement to an initial 40 percent evaluation for neuropathy of the left foot, from June 1, 2006, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.124a, Diagnostic Code 8520 (2012).

7. The criteria for entitlement to a TDIU are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Higher Level of SMC

Under 38 U.S.C.A. § 7105 (West 2012), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Either an appellant or his or her authorized representative may request withdrawal. 38 C.F.R. § 20.204 (2012). 

On December 4, 2012, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw his claim of entitlement to a higher level of SMC based on loss of use of a creative organ. With regard to that claim, there thus remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed.

II. All Other Claims

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. 

VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. 
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); see also Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (requiring generic notice in claims for an increased evaluation, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned).

These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). 

Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004).

VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012).

Notice

The RO provided the Veteran VCAA notice on these claims by letters dated September 2005, July 2006, October 2007, July 2008 and June 2010. These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claims and identify the type of evidence that would best do so. They include all necessary information on disability ratings and effective dates. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicate that the RO would make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identified its source(s), but that it was the Veteran's responsibility to ensure VA's receipt of this and any other pertinent evidence. 

While the RO sent some of the VCAA notice letters after initially deciding the Veteran's claims and they were untimely. The RO cured this timing defect later, however, by advising the Veteran in a VCAA compliant letter and in a supplemental statement of the case issued in July 2010. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

Assistance

The RO also satisfied its duty to assist the Veteran in the development of these claims by securing and associating with the claims file all documents the Veteran identified as being pertinent to his claims, including post-service treatment records. The RO also afforded the Veteran VA examinations in support of his claims, during which examiners discussed the severity of his diabetes and related complications. 
Analysis

The Veteran seeks an increased evaluation for his diabetes mellitus and related neuropathy of both lower extremities, specifically a 40 or 100 percent evaluation for the former condition because it is not well controlled and 20 or 30 percent evaluations for the latter conditions. He alleges that, together, they render him unemployable.

According to written statements he submitted in February 2006, July 2006, March 2007 and April 2008 and his December 2012 hearing testimony, his diabetes and its complications are much worse than the assigned evaluations reflect and have been worsening daily for the last six years. Allegedly, his diabetes now affects his kidneys and involves neuropathy in his hands. 

The Veteran contends that his diabetes necessitated the use of insulin for four years although he also reported that he stopped using insulin approximately two years prior to the 2012 hearing. He alleges that the disorder always necessitates a restricted diet, and affects his daily activities. He asserts that, due to the neuropathy, he cannot stand, bend or pick things up. He further asserts that, due to the loss of feeling associated with the neuropathy, the loss of his quadriceps and Crohn's disease, he was in a wheelchair for six years and, since then, he has been able to stand for only a few moments; relies on ambulatory aids for support; and falls if he does not have them secondary to a loss of balance. He reports that he has function in his feet (no foot drop), but that sometimes his legs give out, causing falls twice daily.  He contends that his legs are numb constantly and that he has not noticed any associated atrophy.

M.B. testified at the hearing that she has witnessed the Veteran falling secondary to his leg problems. Allegedly, he is unable to walk more than five to ten feet or bend down.

The Board has carefully considered the Veteran's assertions in light of the evidence, but finds that the preponderance of the evidence is against the claims for an increased evaluation for diabetes and for higher initial evaluations for neuropathy in both feet, prior to June 1, 2006. During the course of this appeal, the Veteran's diabetes mellitus has required alternating therapy dietary restrictions and, subsequently, use of an oral agent and then insulin for a short period of time. To the extent doctors recommended that the Veteran regulate his activities during this time period, they offered such advice based on other medical conditions, not the Veteran's diabetes mellitus. In addition, prior to June 1, 2006, neuropathy in each of the Veteran's feet caused no more than mild nerve damage.

However, the Board also finds that the evidence supports the claims for higher initial evaluations for neuropathy in both feet, from June 1, 2006, and for a total disability evaluation based on individual unemployability (TDIU), a component of the claims for increased/higher initial evaluations. Rice v. Shinseki, 22 Vet.App. 447 (2009)((holding that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating)).

Since June 1, 2006, the neuropathy in each of the Veteran's feet, characterized as causing moderate nerve damage, has worsened and become severe. Together with the diabetes and the Veteran's totally disabling stroke residuals, these disabilities render the Veteran unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities as of June 1, 2006. 

The Board notes in this regard that while the Veteran is already in receipt of a 100 percent schedular evaluation due to the residuals of a cerebrovascular accident associated with the service-connected diabetes mellitus, this rating is effective from April 22, 2008. The Board presently grants increased disability ratings, effective June 1, 2006, and the Veteran is therefore eligible for TDIU as of that time. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (the award of a 100 percent schedular disability rating effectively moots a claim for entitlement to a TDIU from the effective date of the 100 percent rating). 



Schedular

Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2012). 

If two ratings are potentially applicable, the higher rating 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 (2012). 

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1.

The RO has evaluated the Veteran's diabetes mellitus as 10 percent disabling from September 15, 2004 and as 20 percent disabling from December 21, 2006, pursuant to Diagnostic Code (DC) 7913. This DC provides that a 10 percent evaluation is assignable when the diabetes is manageable by restricted diet only. A 20 percent evaluation is assignable when the diabetes requires the use of insulin or oral hypoglycemic agent and a restricted diet. A 40 percent evaluation is assignable when the diabetes requires insulin, a restricted diet, and regulation of activities. A 60 percent evaluation is assignable when the diabetes requires insulin, a 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. A 100 percent evaluation is assignable when the diabetes requires more than one daily injection of insulin, a 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 (2012).

"Regulation of activities" has been defined as a situation in which the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007).

Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation under DC 7913. Noncompensable complications are considered part of the diabetic process under DC 7913. 38 C.F.R. § 4.119, DC 7913, Note (1). 

In this case, the RO has also considered three noncompensable complications, including nephropathy, retinopathy and erectile dysfunction, as part of the Veteran's diabetic process under DC 7913. According to the December 2012 hearing testimony, the Veteran is not seeking a separate grant of service connection for the erectile dysfunction.

The RO has assigned the Veteran separate evaluations for compensable complications of his diabetes, including residuals of a stroke, evaluated as 100 percent disabling; and neuropathy of each foot, evaluated as 10 percent disabling from September 15, 2004 and as 20 percent disabling from December 21, 2006, pursuant to DC 8520. As separate evaluations are in effect for these complications, the Board will not consider them in determining the severity of the Veteran's diabetes under DC 7913. See 38 C.F.R. § 4.14 (2012) (the evaluation of the same manifestations under various diagnoses is to be avoided). 

DC 8520 governs ratings of diseases of the sciatic nerve. It provides that a 10 percent evaluation is assignable for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assignable for moderate incomplete paralysis of the sciatic nerve. A 40 percent evaluation is assignable for moderately severe incomplete paralysis of the sciatic nerve. A 60 percent evaluation is assignable for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2012).

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a, DC 8520 (2012).

A physician first noted elevated glucose in the 1990s, when the Veteran was using steroids (1985 to 1998). In August 2003, another physician noted elevated glucose. At that time, the Veteran reported that he had a history of diabetes mellitus secondary to steroid use, which he had controlled with diet. Based on an A1C of 7, the physician advised the Veteran to lose weight. 

From September 2003 to February 2004, physicians diagnosed diabetes mellitus and the Veteran controlled this condition by restricting his diet. In March 2004, his physician placed him on an oral agent. In April 2004, the physician noted that the Veteran understood the benefits of, and engaged in appropriate exercise. In January 2005, a physician noted that the Veteran's control of his diabetes was worsening. At that time, the Veteran was still using the oral agent, the dosage of which the physician increased.  

The Veteran first reported numbness in his feet in 2004. Testing revealed diabetic neuropathy, but a physician reportedly told the Veteran that his myopathy (associated with his ruptured quadriceps) was contributing to the problem. In May 2005, the Veteran reported that the numbness was improving. At that time, he was still on an oral agent. Testing revealed positive microalbuminuria.

During a VA examination conducted in late May 2005, the Veteran reported that he still restricted his diet, was on the oral agent and had never used insulin. He also reported that he was not able to do very much in the way of strenuous activity - although not because of his diabetes, but because of other major health problems. His report in this regard is consistent with VA outpatient treatment records in the claims file dated in 2004 and 2005, which show that the Veteran has multiple serious disorders involving his lower extremities, including ruptured quadriceps which necessitated the use of a wheelchair. 

The VA examiner noted slightly decreased perception of light touch over the plantar surfaces of both feet, known to be due to neuropathy, and other lower extremity abnormalities, which he attributed to myopathy involving the quadriceps bilaterally. An eye examination conducted the same day revealed no diabetic-related eye abnormalities.

During a VA examination conducted in October 2005, the Veteran reported that he still restricted his diet; was on two oral agents and had been told that his diabetes was worsening might necessitate the use of insulin. He also reported that he had no restrictions in activity secondary to his diabetes. He noted that he had numbness and tingling in the bilateral feet, which the VA examiner only partially attributed to diabetes, and erectile dysfunction, which Viagra reportedly helped. 

The examiner indicated that the Veteran also had nephropathy as evidenced by the May 2005 testing showing positive microalbuminaria. During an eye examination conducted the same day, another examiner noted minimal diabetic retinopathy in the right eye only. 

VA outpatient treatment records dated in 2005 confirm treatment for erectile dysfunction and worsening glucose readings. In October 2005, a physician recommended that the Veteran begin using insulin instead of an oral agent. 

During a VA examination conducted in November 2005, an examiner characterized the numbness in the Veteran's legs as severe, but attributed it to multiple medical problems, including varicosities. At that time, the Veteran was still on an oral agent for his diabetes. 

The Veteran continued on an oral agent for his diabetes until March 2006, when a physician prescribed insulin. In April 2006 the Veteran reported that he was not using any medications for his diabetes and was watching his diet. In May 2006, however, he noted that he was still using insulin and VA listed it as one of the Veteran's medications. 

Since 2005, the Veteran has complained of worsening pain, tingling and numbness in the lower extremities including his feet. However, physicians have consistently attributed these symptoms to multiple disabilities, not just the Veteran's diabetes-related neuropathy.

On June 1, 2006, a VA physician confirmed that the Veteran's neuropathy, consistent with diabetes, had slightly worsened since September 2004 and represented a severe, symmetric, sensory greater than motor neuropathy with mixed features. Since then, multiple medical professionals have characterized the neuropathy as severe. 

As of December 2006, when the Veteran underwent another VA examination, he was still on insulin and restricting his diet, but not his activities secondary to diabetes. He denied all diabetes-related complications other than neuropathy, but the examiner diagnosed not only neuropathy of both lower extremities, but also nephropathy (testing revealed positive albumin) and impotence. On VA eye examination conducted the same day, the examiner noted no diabetic retinopathy of either eye. 

As of January 2008, the Veteran was no longer using insulin, but taking oral agents when compliant. He underwent a VA examination in September 2009, during which an examiner confirmed that the Veteran was on an oral agent for his diabetes. The examiner also noted elevated microalbumin and diagnosed nephropathy and neuropathy in both lower extremities. On VA eye examination conducted the same day, the examiner noted no diabetes-related eye abnormality. 

At no point during the course of this appeal, including when the Veteran's diabetes worsened and necessitated the use of insulin, did a physician indicate that the Veteran's diabetes was so severe it required regulation of activities. In fact, at one point, a medical professional noted the importance of physical activity and on multiple occasions during VA examinations, the Veteran admitted that his diabetes did not require him to regulate his activities. To the extent he was forced to curtail any physical activities during the course of this appeal, this problem resulted from other serious medical conditions, not diabetes or its complications. A schedular evaluation in excess of 20 percent is therefore not assignable under DC 7913. 

There is also no evidence in the claims file indicating that the noncompensable complications of nephropathy, retinopathy and erectile dysfunction, considered as part of the diabetes mellitus, have worsened to such an extent they are now compensable and should be rated separately. As noted, the Veteran withdrew a claim for SMC based on loss of use of a creative organ. See 38 C.F.R. § 4.115b, DCs 7520, 7521, 7522 (2012) (to be assigned a compensable evaluation for erectile dysfunction, the evidence of record must demonstrate removal of half or more of his penis; removal of glans; or a penile deformity). 

In addition, although the Veteran has had elevated albumin, there has been no evidence of hyaline and granular casts, red blood cells or transient or slight edema and a VA examiner has disassociated the Veteran's hypertension from his diabetes. See 38 C.F.R. § 4.115a, DC 7541 (2012). 

An initial schedular evaluation in excess of 10 percent for neuropathy is also not assignable under DC 8520, prior to June 1, 2006. The Veteran described only sensory disturbances prior to 2006 and there is no evidence in the claims file indicating that those disturbances were causing more than mild nerve damage. 

On June 1, 2006, a physician noted that the neuropathy had worsened and characterized it as severe. Severe nerve damage warrants the assignment of a 60 percent evaluation under DC 8520 when it involves marked muscular atrophy. In this case, the evidence shows some atrophy in the lower extremities, but not secondary to diabetes. In fact, during one VA examination, the Veteran specifically reported that he noticed no atrophy secondary to the neuropathy. Accordingly, the assignment of a 40 percent evaluation under DC 8520 is more appropriate and will be granted as noted in the ORDER section, below.  

Extraschedular

In certain circumstances, a claimant may be assigned a higher initial or increased evaluation on an extraschedular basis. The question of whether such an evaluation may be assigned on such a basis is a component of a claim for a higher initial or increased evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). 

Although the Board may not assign an evaluation on an extraschedular basis in the first instance, when the question is raised either by the claimant, or reasonably by the evidence of record, the RO or Board must specifically decide whether to refer the claim to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321 for consideration of the matter. Barringer v. Peake, 22 Vet. App. 242 (2008). He is authorized to approve the assignment of an extraschedular evaluation if the claim "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). 

If the claimant or the evidence raises the question of entitlement to a higher initial or increased evaluation on an extraschedular basis, as a threshold matter, the Board must determine whether the evidence before VA presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This requires comparing the level of severity and symptomatology of the service-connected disability with the established criteria found in the rating schedule pertaining to that disability. Thun v. Peake, 22 Vet. App. 111, 118 (2008). If the criteria reasonably describe the level of severity and symptomatology of the disability, the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is necessary. Id. If the criteria do not reasonably describe the level of severity and symptomatology of the disability, the disability picture is not contemplated by the rating schedule and the assigned schedular evaluation is inadequate. The RO or Board must then determine whether the exceptional disability picture involves other related factors such as those outlined in 38 C.F.R. 3.321(b)(1) as "governing norms", including "marked interference with employment" and "frequent periods of hospitalization". Id.

In this case, the Veteran has raised such a claim, but no referral is necessary. The rating criteria reasonably describe the level of severity and symptomatology of the Veteran's diabetes and neuropathy. The rating criteria discussed above squarely addresses the severity of the Veteran's symptoms, allowing for separate evaluations for the multiple complications of the diabetes, including severe neuropathy; and contemplating the need for a restricted diet and use of either an oral agent or insulin. 

TDIU

A total disability rating based on individual unemployability (TDIU) is also a component of a claim for a higher initial or increased evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be granted when a veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). If a claimant has only one disability, however, this disability must be ratable at 60 percent or more. If he has two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology or a single accident, or affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a) (2012).

Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU claim is not raised unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). 

The Veteran in this case has raised a claim for a TDIU and the combined service-connected ratings meet the percentage requirements noted above. His service-connected disabilities render him totally disabled within the meaning of 38 C.F.R. § 4.16(a) and a TDIU is granted effective June 1, 2006. 


ORDER

The appeal on the claim of entitlement to a higher level of special monthly compensation based on loss of use of a creative organ is dismissed.

An evaluation in excess of 20 percent for diabetes mellitus with nephropathy, retinopathy and erectile dysfunction is denied.

An initial evaluation in excess of 10 percent for neuropathy of the right foot, from September 15, 2004 to May 31, 2006, is denied.

An initial 40 percent evaluation for neuropathy of the right foot, from June 1, 2006, is granted.

An initial evaluation in excess of 10 percent for neuropathy of the left foot, from September 15, 2004 to May 31, 2006, is denied. 

An initial 40 percent evaluation for neuropathy of the left foot, from June 1, 2006, is granted. 

A TDIU is granted effective June 1, 2006. 


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs