Citation Nr: 1312648 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 03-04 010 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus for the period from January 26, 1995, through August 17, 2000. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from August 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions in March 2002 and December 2002 by the Regional Office (RO) in Albuquerque, New Mexico. When this case was most recently before the Board in July 2012, it was decided in part and remanded in part for additional evidentiary development; it has since been returned for further appellate action. 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. FINDING OF FACT Only with consideration of the benefit-of-the-doubt doctrine, the preponderance of the competent and credible evidence of record reflects that the Veteran's service-connected diabetes mellitus for the period from January 26, 1995, through August 17, 2000, required insulin, a restricted diet, and regulation of activities. CONCLUSION OF LAW For the period from January 26, 1995, through August 17, 2000, the criteria for a disability rating of 40 percent, but not higher, for diabetes mellitus are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (effective prior to and after 1996). REASONS AND BASES FOR FINDING AND CONCLUSION It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked items of evidence not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the veteran's claim is to be considered. An appeal from the initial assignment of a disability rating, such as in this case, requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks a higher initial evaluation for his service-connected diabetes. By a rating action in December 2002, the RO granted the Veteran's claim of entitlement to an earlier effective dated for service connection for diabetes mellitus and assigned a 20 percent rating, effective from January 25, 1995, through August 17, 2000. The 40 percent rating, effective August 18, 2000, was confirmed and continued. In September 2003, the Veteran reported that he was satisfied with the 40 percent rating. The Veteran maintains, however, that a rating in excess of 20 percent is warranted for diabetes mellitus for the period from January 25, 1995, through August 17, 2000. The applicable rating criteria for diabetes, found at 38 C.F.R. § 4.119, was amended, effective June 6, 1996. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the Secretary of VA to do otherwise and the Secretary did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the Veteran's service-connected diabetes under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2011); VAOPGCPREC 3-2000; Green v. Brown, 10 Vet. App. 111, 117 (1997). Prior to June 6, 1996, DC 7913 provided that: A rating of 20 percent was to be assigned for moderate diabetes; with moderate insulin or oral hypoglycemic agent dosage, and restricted (maintenance) diet; without impairment of health or vigor or limitation of activity. A 40 percent rating was to be assigned for moderately severe diabetes; requiring insulin dosage, restricted diet and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities. A 60 percent rating was to be assigned for severe diabetes with episodes of ketoacidosis or hypoglycemic reactions, but with considerable loss of weight and strength and with mild complications, such as pruritus ani, mild vascular deficiencies, or beginning diabetic ocular disturbance. A maximum rating of 100 percent was to be assigned for pronounced uncontrolled diabetes mellitus with repeated episodes of ketoacidosis or hypoglycemic reactions, restricted diet and regulation of activities, with progressive loss of weight and strength or severe complications. Under the revised criteria, a rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. Important for this case, a 40 percent rating requires insulin, a restricted diet, and regulation of activities. A rating of 60 percent requires insulin, restricted diet, and regulation of activities and episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. The highest possible rating of 100 percent is assigned when there is a requirement of more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) and 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). Note 1 to Code 7913 indicates that noncompensable complications are considered part of the diabetic process. Here, the Board notes that with respect to the severity of the Veteran's diabetes, there is no significant difference between the old and new regulations for rating diabetes. In this regard, both versions require a regulation of activities for the next highest rating, which is 40 percent. Therefore, the determinative question is whether his diabetes required a regulation of activities for the period from January 26, 1995, through August 17, 2000. Accordingly, the Board remanded this claim in July 2012 to afford the Veteran a VA examination in order to develop evidence, to the extent possible, regarding the severity of his diabetes mellitus prior to August 18, 2000. The Veteran was afforded a VA examination in August 2012 in which the examiner stated in the opinion portion of the report that records were reviewed which showed diagnosis of diabetes in 1984 and microalbuminuria, hypertension, and retinopathy around 1999. The Board finds that this is not an opinion addressing the severity of the Veteran's diabetes mellitus prior to August 18, 2000; therefore, it is inadequate for adjudication purposes. However, this case has been remanded three times (twice not by the undersigned) and at some point the adjudication of a case must end. The Board further finds that the medical evidence does not clearly indicate that the Veteran's diabetes disability requires regulation of activities, which is the avoidance of strenuous occupational and recreational activities. The term "regulation of activities," as defined by Diagnostic Code 7913, requires that a claimant have a medical need to avoid not only strenuous occupational activity, but strenuous recreational activity as well. Camacho v. Nicholson, 21 Vet. App. 360, 363-34 (2007). A thorough review of the claims file, the Board finds private medical records indicating regulation of some, debatably, nonregulation of activities during the period from January 26, 1995, through August 17, 2000. Specifically, in a January 1998 record the Veteran was "encouraged to resume walking" under a section titled "medication/treatments/procedures/patient education"; in a March 1998 treatment record it was noted that the Veteran should "[continue] exercises, walking" in the instructions to patient section; and a September 1999 treatment record noted "daily walks" under the medication/treatments/procedures/patient education section. The Board also notes that the Veteran's exercise regiment was detailed in other records during this period of time. However, the Board finds that the opinion obtained is not an opinion addressing the severity of the Veteran's diabetes mellitus prior to August 18, 2000; therefore, it is inadequate for adjudication purposes and cannot be the basis to deny the claim. This case has been remanded three times (twice not by the undersigned) and at some point the adjudication of a case must end. Further, following the Board's June 2004 remand, nearly 10 years ago, the Veteran's claims file was lost (such a fact clearly impacts the Board's decision to grant the claim at this time). The Board must emphasize that it is only with giving the Veteran the benefit-of-the-doubt that these medical records have been accepted as evidence of regulation of activities; therefore a 40 percent rating is warranted from January 26, 1995, through August 17, 2000. Moreover, the Board has considered whether the increased rating claim warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321. Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board does not find any symptoms or functional impairment that is not already encompassed by the currently assigned rating, and there is no unusual or exceptional disability picture shown. Therefore, the schedular criteria are not inadequate, and referral for consideration of extraschedular rating is not necessary. Finally, as the Veteran is not shown to be unable to obtain or maintain substantially gainful employment due to his diabetes, no claim for a total disability rating based on individual unemployability (TDIU) is reasonably raised by the record in this case. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding the Veteran's claim, he is challenging the initial rating assigned for his service-connected diabetes, following the award of service connection. The Veterans Claims Court, quoting from the legislative history of the VCAA, has held that, in cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose which the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 491. Moreover, under 38 C.F.R. § 3.159(b)(3)(i) , there was no duty to provide him with VCAA notice upon receipt of a Notice of Disagreement, expressing disagreement with the initial rating assigned for his claimed disability. Notwithstanding the above, the Veteran was advised how VA determines the rating once service connection has been awarded in a March 2009 notice letter. The Veteran has further been provided with ample opportunity to submit evidence and argument in support of his claim during the course of this appeal. The duty to assist the Veteran has also been satisfied to the extent possible. Following the Board's June 2004 remand, the Veteran's claims file was lost (such a fact clearly impacts the Board's decision to grant the claim at this time). While the claims file has been re-built to a certain extent, it remains largely incomplete. Reconstruction has been attempted several times, most recently by the Appeals Management Center (AMC) in 2011. An October 2011 memorandum indicates that this most recent attempt was unsuccessful. The Veteran was provided notice again of the inability to locate or further reconstruct his claims file in an October 2011 letter. The Veteran was at that time notified of the need to submit copies of any ratings decisions, SOCs or SSOCs in his possession. The Veteran did not respond. The Board remanded previously to obtain outstanding records dated prior to August 2000. The June 2004 Board remand discusses the content of treatment records from the U.S. Public Health Service (PHS), which is part of the U.S. Department of Health and Human Services. The 2009 and 2011 Board remands contained instructions regarding obtaining new copies of those treatment records. Ordinarily, VA is to request all relevant records in possession of a Federal agency. See 38 C.F.R. § 3.159(c). The PHS does not, however, release treatment records without consent of the patient to VA unless VA arranged for the care provided by the PHS. See M21-1MR III.iii.4.11.c. There is no indication that the PHS care was arranged by VA. The Veteran was asked to provide an authorized release in an August 2011 letter. The Veteran did not provide the release. Thus, despite the presence of relevant records in the possession of a Federal agency, VA could not obtain them. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). VA provided specific notice that the Veteran's participation was required in the development of his claim. The Veteran failed to participate. The Board finds the duty to assist in obtaining records discharged. The Veteran was also afforded with medical examinations in connection with his claim. Although the Board has found the opinion obtained in the most recent August 2012 VA examination inadequate for adjudication purposes, it finds sufficient medical evidence to grant entitlement to a rating of 40 percent during the period in question. The evidence available to the Board, and to any medical professional, does not show or indicate that the Veteran had the symptoms or treatment required for the next higher rating, 60 percent, from January 26, 1995, through August 17, 2000. That is, it is clear that the Veteran had moderate diabetes and only with affording the benefit of the doubt is the Board able to grant entitlement to a 40 percent rating. As such, the Board will not remand for another medical opinion. The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist him in developing the facts pertinent to the claim adjudicated herein. In view of the foregoing, there was no prejudice to the Veteran in proceeding with appellate review. ORDER Entitlement to a rating of 40 percent, but not higher, for diabetes mellitus for the period from January 26, 1995, through August 17, 2000, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs