Citation Nr: 1311266 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 06-25 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus with complications of hypertension and bilateral retinopathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, continued a 20 percent evaluation for diabetes mellitus with complications of hypertension and bilateral retinopathy. Jurisdiction over the claims file is currently held by the RO in Atlanta, Georgia. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Atlanta RO. A transcript of the hearing is of record. In January 2013, the Board remanded the case for further action by the originating agency. The case has now returned to the Board for further appellate action. During the September 2012 hearing, the Veteran testified that his service-connected peripheral neuropathy of the bilateral lower extremities had worsened in severity. Additionally, in the March 2013 written brief presentation, the Veteran's representative contended that sleep apnea, chronic obstructive pulmonary disease (COPD), and gastroesophageal reflux disease (GERD) were incurred secondary to service-connected diabetes mellitus. Therefore, the issues of entitlement to increased ratings for peripheral neuropathy of the lower extremities and entitlement to service connection for sleep apnea, COPD, and GERD as secondary to diabetes mellitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's diabetes mellitus requires treatment with insulin and a restricted diet; his medical provider has not regulated his occupational or recreational activities due to diabetes mellitus. 2. The Veteran's diabetic complications of hypertension and bilateral retinopathy have not manifested to a compensable level. CONCLUSIONS OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.120, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for diabetes associated with herbicide exposure was granted in an August 2001 rating decision. An initial 20 percent evaluation was assigned effective July 9, 2001. In July 2003, the service-connected diabetes was recharacterized to include the complication of hypertension. The disability was recharacterized again in a March 2009 rating decision to include bilateral retinopathy. The May 2005 rating decision on appeal continued a 20 percent evaluation for diabetes mellitus. The Veteran contends that an increased evaluation is warranted for his diabetes as the disability requires treatment with insulin, restricted diet, and regulation of his activities. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the regulations do not give past medical reports precedence over current findings. Id. When the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability is rated under Diagnostic Code 7913 pertaining to diabetes mellitus. This diagnostic code provides that when diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. When insulin, restricted diet, and regulation of activities are required, it is evaluated as 40 percent disabling. 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 rated, is rated 60 percent disabling. Note (1) following the rating criteria provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The criteria for a 40 percent rating for diabetes are conjunctive not disjunctive-i.e., there must be insulin dependence and restricted diet and regulation of activities. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). After review of the evidence of record, the Board finds that the Veteran's diabetes mellitus does not most nearly approximate the criteria associated with an increased evaluation. Although the record establishes that the Veteran's diabetes is treated with an oral hypoglycemic agent, insulin, and a restricted diet, the weight of the evidence does not establish regulation of activities. The Veteran has submitted some evidence in support of his claim; June 2005 and September 2012 physician statements from the Veteran's VA primary care physician and private doctor indicate that the Veteran's activities are regulated due to service-connected diabetes. However, review of the Veteran's VA treatment records does not actually indicate any regulation of activities in accordance with Diagnostic Code 7913. In fact, the VA primary care physician provided regular counseling regarding the Veteran's need to exercise throughout the claims period, and appears to have encouraged rather than restricted strenuous recreational activities. Additionally, VA examiners who examined the Veteran and reviewed the claims file in June 2011 and February 2013 specifically found that the Veteran's activities were not regulated. Although the March 2005 VA examiner noted that the Veteran self-regulated himself to avoid strenuous activity, there was no indication that he had been advised by a medical professional to restrict his occupational and recreational activities. With respect to the September 2012 statement from the private doctor, the notation regarding restricted activities was not accompanied by any specific remarks as requested by the physician statement form. The statement also noted that the Veteran's diabetic care was provided by his VA physician and it is therefore unclear whether the private doctor actually provided any treatment for the Veteran's diabetes. It is also unclear whether the private physician's statement was based on review of any relevant medical records or solely on the Veteran's own reports regarding his medical care. The lack of clarity in the September 2012 private physician's statement and the failure to provide a basis for the expressed opinion lessens the probative value of the medical opinion. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has considered the Veteran's lay statements regarding regulation of his activities. The Veteran is competent to state the type of treatment he receives for diabetes, but the Board notes that he has not provided any details regarding this contention. He reported during the March 2005 VA examination that he self-regulated his activities to avoid hypoglycemic reactions, but did not state that any physician had restricted his activities. Similarly, the Veteran did not provide any specific testimony regarding the claimed regulation of his activities during the September 2012 hearing or at any other time during the claims period. As noted above, statements dated in June 2005 and September 2012 from his VA and private physician indicate regulation of activities, but again, no details were provided regarding the restrictions placed on the Veteran. The Board therefore finds that the contents of the Veteran's VA treatment records and the findings of the June 2011 and February 2013 VA examiners are far more probative regarding the Veteran's actual treatment for diabetes. Thus, the weight of the evidence establishes that the Veteran has not been advised by a medical professional to avoid of strenuous occupational and recreational activities. The record also does not establish that the Veteran's disability most nearly approximates the other criteria associated with an increased rating under Diagnostic Code 7913. As discussed below, the Veteran is service-connected for complications of diabetes that are not compensable, but he has consistently denied experiencing episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization. Review of the VA treatment records also demonstrates that he has not visited his diabetic care provider twice a month. In fact, the Veteran testified in September 2012 that he only visited his VA diabetic care provider every six months. Therefore, the Veteran's diabetes does not most nearly approximate the criteria associated with a 60 percent evaluation under Diagnostic Code 7913. The note following Diagnostic Code 7913 provides that compensable complications of diabetes mellitus are rated separately unless they are used to support a total disability rating. 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran's service-connected diabetes mellitus includes complications of hypertension and bilateral retinopathy. Thus, the Board must discuss whether these complications are of sufficient severity to warrant separate compensable ratings. Turning first to diabetic retinopathy, the Board notes that the record is wholly negative for objective evidence of retinopathy at anytime during the claims period. VA treatment records include reports of annual eye examinations that specifically note a lack of diabetic retinopathy. In addition, reports of VA examinations performed in March 2005, January 2009, and February 2013 are negative for retinopathy. The various examinations have disclosed the presence of bilateral cataracts, but the record does not contain a medical opinion definitively linking the cataracts to service-connected diabetes. In any event, as there is no objective evidence of retinopathy in the Veteran's treatment records or during multiple VA examinations, the condition has clearly not manifested to a compensable level as to allow a separate evaluation under Diagnostic Code 7913. The Board must now determine whether the Veteran's hypertension has manifested to a compensable level at any time during the claims period. Hypertension is evaluated under Diagnostic Code 7101 pertaining to hypertensive vascular disease. Under Diagnostic Code 7101, a 10 percent rating is applicable if diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure of predominantly 100 or more and continuous medication is required to control blood pressure. A 20 percent evaluation is warranted if diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. After review of the evidence, the Board finds that the Veteran's hypertension does not most nearly approximate the criteria for a compensable evaluation at anytime during the claims period. The Veteran's hypertension has been controlled with continuous medication throughout most of the rating period, but the Board finds that there is no history of diastolic pressure predominantly 100 or more. None of the blood pressure readings taken at anytime during the claims period have indicated diastolic pressure of 100 or more; in fact, the Veteran's highest diastolic blood pressure reading was only 88 during a June 2011 VA examination. The Board also finds that the Veteran's systolic pressure has not most nearly approximated predominantly 160 or more. Records of VA treatment dated throughout the claims period document systolic pressure that is consistently below 160 except for an isolated episode in December 2008 when the Veteran's blood pressure was measured at 169/75. The Board finds that one incident of elevated systolic pressure during the pendency of the eight year claims period does not establish that systolic pressure has "predominantly" been measured to 160 or more. Similarly, VA examinations conducted throughout the claims period have only demonstrated a systolic level greater than 160 on one occasion-during the June 2011 VA examination. At that time, the Veteran manifested a systolic blood pressure of 179. However, this finding is not truly indicative of the Veteran's blood pressure levels. During a visit to his VA primary care physician in June 2011 (the same month as the VA examination), the Veteran's systolic pressure was measured to 131. Six months later, his systolic pressure was similarly measured to 139. It is therefore clear based on the VA treatment records and VA examinations that the Veteran's systolic blood pressure has not predominantly measured 160 or more at any time during the claims period. As the Veteran does not meet the criteria for a compensable rating for hypertension under Diagnostic Code 7101, a separate rating is not appropriate for this complication of diabetes under Diagnostic Code 7913. The Board has considered whether there is any other schedular basis for granting a higher rating for the service-connected diabetes mellitus and its associated complications, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this period because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's diabetes is manifested by increased blood sugar levels that are controlled by insulin and a restricted diet. The service-connected complications of diabetes (hypertension and bilateral retinopathy) have also not manifested to a compensable degree at any time during the claims period. These manifestations of diabetes are contemplated in the rating criteria and the rating criteria are therefore adequate to evaluate them. Thus, referral for consideration of extraschedular rating is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 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) and that the claimant is expected to provide. 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). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in a March 2005 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claim, specifically notice of the Dingess elements, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the February 2013 supplemental statement of the case (SSOC). Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a 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 a 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). The Veteran was provided several VA examinations to determine the current severity of his diabetes and related complications of hypertension and retinopathy, and was most recently examined by VA in February 2013. VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. The Veteran has not identified any private health care providers that have treated his diabetes. In support of his claim, he submitted a September 2012 physician's statement from a private doctor describing the current treatment of his diabetes mellitus, but the statement from the doctor indicated that the Veteran's diabetic care was provided by VA. The Veteran's VA treatment records also show that his diabetic health provider is his primary care physician at the Lake City VA Medical Center (VAMC). Thus, the Board finds that there are no outstanding private records of medical care pertaining to the disability on appeal. The Board also finds that VA has complied with the January 2013 remand orders of the Board. In response to the Board's remand, the Veteran was provided various VA examinations in February 2013 to determine the severity of his service-connected diabetes mellitus with hypertension and retinopathy. The case was then readjudicated in February 2013. Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus with complications of hypertension and bilateral retinopathy is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs