Citation Nr: 1310131 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 09-49 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1964 to July 1971, July 1984 to July 1987, and from August 1988 to August 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which, in pertinent part, granted service connection for diabetes mellitus, type II, associated with herbicide exposure, assigned at 20 percent disabling effective the date of claim on May 8, 2008. The Veteran submitted a December 2009 substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO. A hearing was scheduled for October 2012, but the Veteran did not appear and did not provide any explanation for his absence. Accordingly, his request for a hearing is considered withdrawn and the Board may proceed with review of the claim. 38 C.F.R. § 20.704(d) (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran failed, without good cause shown, to attend his VA examination for diabetes mellitus, type II, in July 2012. 3. For the entire initial rating period, the service-connected diabetes mellitus, type II, more closely approximates a manifestation of requiring insulin and restricted diet. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Service-Connected Diabetes Mellitus, Type II In an August 2010 statement, via a VA Form 21-526b, the Veteran reiterated his request for an increase for his diabetes mellitus, type II. He asserted the disorder has become much worse as he is now taking insulin injections twice daily and is on a restricted diet and limited activities. In this regard, it is important for the Veteran to understand that use of insulin (even if it has increased) and the restricted diet was the basis for the 20 percent evaluation. Pursuant to the rating criteria for the endocrine system, the service-connected diabetes mellitus, type II, is rated at 20 percent disabling, effective May 8, 2008 under Diagnostic Code 7913. A 20 percent evaluation is warranted when insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet is required. 38 C.F.R. § 4.119 (2012). Important for this case, a 40 percent rating is assigned when insulin, a restricted diet, and regulation of activities are required. Id. A 60 percent evaluation is warranted when diabetes mellitus 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. Id. A 100 percent rating is warranted when diabetes mellitus 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. Id. Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. 38 C.F.R. § 4.119, Note (1) (2012). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. After a full review of the record, finds that a preponderance of the evidence is against a disability rating in excess of 20 percent for the service-connected diabetes mellitus, type II, for any period. As discussed below, the evidence of record indicates the service-connected disability more closely approximates a manifestation of requiring insulin and restricted diet. Pursuant to private treatment sessions with Dr. A. P., such records show that in March 2007, the Veteran appeared well nourished and hydrated with no acute distress, he denied weight loss, and his diabetes mellitus, type II, was noted as controlled, providing evidence against this claim. In April 2007 the Veteran underwent a diabetic check in which the private physician noted sugars have increased to 130s since stopping Avandia. A diabetic check in July 2007 revealed no pertinent complaints from the Veteran. In October 2007, the Veteran reported feeling good overall and reported two incidents which the physician noted could have been due to low blood sugar. One on occasion, the Veteran felt that the chair was falling and had a near syncope moment lasting a few seconds, blacked out in mid sentence, then saw little flashing lights, then a few days later, he walked into the kitchen and had a dizzy moment. Again, the Veteran appeared well nourished and hydrated with no acute distress and the physician affirmed an impression of diabetes mellitus, type II. Subsequently, following an April 2008 treatment session, the private treating physician noted the Veteran's diabetes mellitus, type II, was poorly controlled. However, in an April 2008 private treatment statement, Dr. A. P. (who reported the Veteran was first diagnosed with diabetes mellitus, type II, in March 2003) noted that the initial treatment consisted of taking Glucophage twice daily, diet modifications, and exercise and then, approximately five years later, dosage of Glucophage was increased and Avandia was added. Current treatment includes Glucophage twice daily, glipizide once daily, watch on diet, and regular exercise. In this regard, while the Board has note a reference to the problem being "poorly controlled" the Board has also noted that "regular exercise" has been part of the Veteran's treatment for years, providing highly probative evidence against a finding that "regulated activities" is required in the Veteran's case. In fact, the Veteran is encouraged to exercise, providing evidence against a finding that a 40 percent evaluation is warranted. At the October 2009 VA examination, the Veteran denied any visual or cardiac complications as a result of his initial diagnosis of diabetes, as well as any hospitalizations for hypoglycemic or diabetic ketoacidosis. The Veteran also denied any weight loss or gain, as he has been currently steady at 215 pounds, and denied any restrictions of his activities due to diabetes, ophthalmologic complications, skin or feet complications, and bowel or bladder dysfunction. In subsequent private treatment statements, Dr. A. P. reported, in January 2010, treating the Veteran for erectile dysfunction since 2006 and believes the disorder is related to the diabetes mellitus. In the October 2010 statement, Dr. A. P. noted the Veteran was diagnosed with diabetes mellitus, type II, in February 2004. Initial treatment were diet modifications and a strict exercise regiment, later the Veteran began a regimen of metformin and Avandia, and is now on an insulin regimen. The Board notes the Veteran is currently service connected for peripheral neuropathy of the bilateral upper and lower extremities due to the service-connected diabetes mellitus, type II. In addition, erectile dysfunction is contemplated in the currently assigned 20 percent disability rating for diabetes mellitus, type II, as noted by the RO in the June 2010 rating decision (loss of use - special month compensation - was granted based on ED). This rating action was not appealed for these separate problems caused by the diabetes and are not on appeal with the Board. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, as required by the Court in Schafrath v. Derwinski. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign an initial higher evaluation than the currently assigned evaluation for the service-connected disability on appeal. Therefore, fully considering the lay and medical evidence of record, the Board finds that a disability rating in excess of 20 percent is not warranted for the Veteran's diabetes mellitus, type II, for any period as it more closely approximates a manifestation of requiring insulin and restricted diet and does not demonstrate the requirement of regulated activities. 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor the evidence of record raises the issue of a total disability rating based on individual unemployability (TDIU) due to the service-connected diabetes mellitus, type II, for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Moreover, in a July 2010 rating decision, the RO denied the issue of entitlement to TDIU due to the Veteran's service-connected disabilities because the Veteran did not return a completed Application for Increased Compensation Based on Unemployability, VA Form 21-8940. An extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular 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, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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 extra-schedular rating. In this case, the Board finds that the symptomatology and impairment of the Veteran's diabetes mellitus, type II, is specifically contemplated by the schedular rating criteria, and no referral for extra-schedular consideration is required. The schedular rating criteria, Diagnostic Code 7913, specifically provides for the Veteran's restricted diet and use of insulin. Such symptomatology is contemplated in the currently assigned disability rating under Diagnostic Code 7913. See 38 C.F.R. § 4.119. Moreover, the Board notes that the Veteran's erectile dysfunction is currently noncompensable and he is separately service-connected for peripheral neuropathy of the bilateral upper and lower extremities due to the service-connected diabetes mellitus, type II. As a result, referral for extra-schedular consideration for the service-connected diabetes mellitus, type II, is not required. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a May 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the May 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's VA outpatient treatment records, private treatment records, private treatment states dated April 2008, January 2010, and October 2010, statements from the Veteran, and an October 2009 VA examination report. The VA examiner reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's most recent VA examination was approximately three and a half years ago; however, the Veteran received adequate notice of a scheduled VA examination in July 2012 and failed to report without good cause. When a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). A claimant has a duty to report for VA examination and must accept the legal consequences for failing to report for good cause. See Turk v. Peake, 21 Vet. App. 565, 567 (2008). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER An initial disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs