Citation Nr: 1314821 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-08 240A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension as secondary to the service-connected diabetes mellitus, type II and coronary artery disease. REPRESENTATION Appellant represented by: Margaret A. Costello, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2008 and October 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2009, the Veteran and his wife testified at a hearing before a Decision Review Officer; in July 2012, the Veteran also testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ). Transcripts of the hearings have been associated with the claims file. At his July 2012 hearing, the Veteran clarified that he was not seeking service connection for hypertension on a direct basis, but only as secondary to his service-connected diabetes mellitus, type II and coronary artery disease. As such, the Board has characterized the issue as set forth on the title page. After the July 2012 hearing, the Veteran submitted new evidence in the form of medical statements, which relate to the issues on appeal. The Veteran specifically waived his right to have the RO consider this evidence in the first instance. 38 C.F.R. § 20.1304(c) (2012). The issue of service connection for hypertension being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The Veteran's diabetes mellitus, type II requires insulin, restricted diet, and regulation of activities. CONCLUSION OF LAW The criteria for an initial rating of 40 percent for diabetes mellitus, type II have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.119 Diagnostic Code (DC) 7913(2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for diabetes mellitus, type II arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regardless, January 2008 and June 2009 letters informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), post-service medical records and also secured an examination in furtherance of his claim. A pertinent VA examination was obtained in July 2008. 38 C.F.R. § 3.159(c)(4). The VA examination obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. The Veteran was also provided with hearings related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the AVLJ explained the issues on appeal, and also suggested the submission of any additional evidence necessary to substantiate his claims. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis The Veteran contends that he is entitled to an initial rating in excess of 20 percent for his diabetes mellitus, type II as he must restrict and regulate his activities. See, e.g., November 2008 notice of disagreement. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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. The Court has indicated that a distinction must be made between a veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's diabetes mellitus, type II as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. As discussed below, the Board concludes that a staged rating is not warranted. In this case, service connection has been granted for diabetes mellitus, type II. This service-connected disability is rated as 20 percent disabling under 38 C.F.R. § 4.119, DC 7913, which evaluates impairment resulting from diabetes mellitus. Specifically, pursuant to DC 7913, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet is assigned a 20 percent disability rating. 38 C.F.R. § 4.119, DC 7913 (2012). Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating. Id. 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 evaluated, is assigned a 60 percent disability rating. Id. Diabetes mellitus requiring 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, is assigned a 100 percent disability rating. Id. In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process under DC 7913. Id at Note (1). The Board notes that "regulation of activities" is defined in DC 7913 as "avoidance of strenuous occupational and recreational activities." Id. In Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007), the Court held that medical evidence is required to show that occupational and recreational activities have been restricted. Based on the evidence of record, the Board concludes that a rating of 40 percent, but no higher, is warranted since the date of service connection. Affording the Veteran the benefit-of-the-doubt, the pertinent evidence of record shows that the Veteran's diabetes mellitus, type II requires insulin, restricted diet, and regulation of activities. In a March 2008 statement, the Veteran's representative indicated that the Veteran's diabetes mellitus, type II required insulin, restricted diet, and regulation of activities. A VA examination in July 2008, however, reveals that the Veteran's diabetes mellitus, type II did not require the restriction of activities. An October 2008 letter from E.B., M.D. indicates that the Veteran's treatment included weight loss, exercise and medication. A letter dated in February 2009 from Dr. E.B. shows that the Veteran had a history of diabetes mellitus, hypertension, hyperlipidemia and asthma. As for his diabetes mellitus, his care plan consisted of a restricted diet, insulin and oral medication. The Veteran's condition was opined to cause restricted and regulated activities; this letter does not specifically indicate that it was the Veteran's diabetes mellitus, type II alone and no other disorders that required the restriction and regulation of activities. Similarly, a letter dated in July 2009 from Dr. E.B. shows that the Veteran's physical activity was limited by his health as he got tired and short of breath easily. His activity was compromised due to his overall poor health and he must rest frequently. He was also limited with intensity of his exercise. As with the February 2009 letter, this letter does not indicate that the Veteran's diabetes mellitus, type II required the regulation of activities. At his July 2012 hearing, the Veteran testified that he had to leave his job due to fatigue. July 2012 Hearing Transcript (T.) at 9. He testified about having consistent fatigue. Id. He could only ride a bicycle for half a mile, whereas he used to be able to ride for 10 miles. Id. at 10-11. The Veteran was unable to walk more than two blocks due to fatigue. Id. at 11. After the Veteran's July 2012 hearing, he submitted a statement from an endocrinologist in September 2012. The statement shows that the Veteran took insulin for his diabetes mellitus, type II. The Veteran could be subject to fluctuations in blood sugar due to vigorous activity. Hence, the Veteran's activities should be monitored and regulated. Throughout this appeal, the Veteran has consistently reported having to restrict his activities due to his diabetes mellitus, type II. Although statements from Dr. E.B. indicate that the Veteran did have to regulate his activities, they fail to show that the Veteran's diabetes mellitus, type II treatment alone required such regulation. Rather, those letters seem to indicate that the Veteran's overall health caused him to restrict and regulate his activities. However, consistent with the Veteran's reports of restricting activities, the endocrinologist letter received in September 2012 clearly indicates that the Veteran's activities needed to be regulated as vigorous activity could cause fluctuations in blood sugar. Based on this letter, the Board concludes that a rating of 40 percent is warranted since the award of service connection. In finding that the Veteran's diabetes mellitus, type II meets the criteria for a 40 percent rating since the award of service connection, the Board acknowledges that the July 2008 VA examination indicates that the Veteran's diabetes mellitus, type II did not require the regulation of activities. As noted above, the Court has held that medical evidence is required to show that occupational and recreational activities have been restricted. Camacho at 363-364. Although the earliest medical evidence showing the restriction of activities was not provided until September 2012, considering the Veteran's statements throughout this appeal, the Board concludes that the 40 percent rating is warranted from the date of service connection. There is nothing in the September 2012 letter to indicate that the Veteran's diabetes mellitus, type II did not require the regulation of activities prior to that date. The Board also finds that a rating in excess of 40 percent is not warranted. The Veteran's contentions throughout this appeal have indicated that he met the criteria for a 40 percent rating. The evidence does not show, nor does the Veteran contend, that he has had 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. In other words, the evidence fails to show that a 60 percent disability rating is warranted. The Board has also considered whether there are compensable complications of diabetes to be evaluated separately. In a January 2012 rating decision, the RO granted the Veteran special monthly compensation based on loss of use of a creative organ due to his erectile dysfunction. To the extent that the Veteran sought service connection for erectile dysfunction, the January 2012 rating decision indicated that it was complete grant of that issue. The Veteran has not indicated having other complications aside from erectile dysfunction, aside from his claim for service connection for hypertension addressed below. The evidence of record fails to show that the Veteran has other complications of his diabetes mellitus, type II that are compensable. For these reasons, the Board finds that the criteria for a rating of 40 percent, but no higher, from the date of service connection have been met. Furthermore, the rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's diabetes mellitus, type II symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's diabetes mellitus, type II has resulted in interference with employment or activities of daily life which would warrant a rating in excess of 40 percent for this disability. Regarding activities of daily life, the July 2008 examiner specifically opined that the Veteran's medical conditions did not affect such activities. Moreover, the evidence does not show that his disability alone renders him unemployable. In this regard, although the Veteran's testimony at his July 2012 hearing indicates that he stopped working due to fatigue, see T. at 9, the July 2009 letter from Dr. E.B. suggests that the Veteran's overall physical health causes him to be tired. The evidence of record fails to show that the diabetes mellitus, type II alone renders him unemployable. Therefore, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER A 40 percent rating is granted for diabetes mellitus. To this extent only, the appeal is allowed. REMAND Regrettably, a remand is necessary for further evidentiary development of the claim for service connection for hypertension as secondary to the service-connected diabetes mellitus, type II and coronary artery disease. Throughout this appeal, the Veteran has contended that his hypertension is secondary to his diabetes mellitus, type II. In his March 2010 substantive appeal, the Veteran also raised the theory that his hypertension was secondary to his service-connected coronary artery disease. At a July 2008 VA examination, the Veteran was diagnosed with chronic hypertension; the examiner opined that it was not likely due to diabetes mellitus, type II nor aggravated by it. However, no rationale for this opinion was provided. The Court, in Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), held that once VA undertakes the effort to provide an examination it must obtain a fully adequate one. In this case, absent a rationale for the opinion presented, the Board finds that the July 2008 examination is not adequate as to the issue of service connection for diabetes mellitus, type II. In support of this claim, the Veteran has submitted statements from private physicians indicating a possible relationship between his hypertension and his diabetes mellitus, type II. An October 2008 letter from Dr. E.B. shows that the Veteran had metabolic syndrome and that hypertension and diabetes mellitus were co-morbidities of metabolic syndrome. Dr. E.B. also submitted a letter dated in February 2009 revealing that the Veteran's conditions were interrelated, but it was possible that hypertension was secondary to diabetes mellitus. A letter dated in July 2012 from J.G., M.D. shows that diabetes was a disorder of glucose metabolism affecting almost every organ in the body. Diabetes was an atherogenic process involving the small blood vessels. It was his opinion that the Veteran's hypertension was at least as likely as it was unlikely a condition caused by diabetes. However, he also opined that diabetes and hypertension were interrelated and possibly hypertension was secondary to diabetes (emphasis added). The Board finds that the opinions from Drs. E.B. and J.G. are speculative as they indicate that there is only a possibility that the Veteran's hypertension is secondary to his diabetes mellitus, type II. Furthermore, Dr. E.B. did not provide any rationale for such opinion. In light of the July 2008 VA examination being inadequate, and as the private opinions of record are speculative or lack a rationale, the Board concludes that a remand is necessary to provide the Veteran with a supplemental medical opinion to address whether his hypertension is secondary to his diabetes mellitus, type II. Although no medical professional has provided any opinion indicating that the Veteran's hypertension may be secondary to his service-connected coronary artery disease, since a remand is necessary for a medical opinion anyway, an opinion regarding a relationship between hypertension and coronary artery disease should also be obtained. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service hypertension treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from Dr. E.B. and from Dr. J.G. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, obtain an appropriate VA medical opinion to determine the etiology of hypertension. The claims file, including a copy of this remand, must be made available to the opinion provider for review in connection with the preparation of the opinion. The opinion provider is requested to review the record and offer opinions as to: a. whether it is at least as likely as not (i.e., probability of approximately 50 percent) that his hypertension is caused by service-connected diabetes mellitus; and b. whether it is at least as likely as not (i.e., probability of approximately 50 percent) that his hypertension is aggravated (permanently worsened beyond normal progression) by service-connected diabetes mellitus; and c. whether it is at least as likely as not (i.e., probability of approximately 50 percent) that his hypertension is caused by service-connected coronary artery disease; and d. whether it is at least as likely as not (i.e., probability of approximately 50 percent) that his hypertension is aggravated (permanently worsened beyond normal progression) by service-connected coronary artery disease. A complete rationale should be given for all opinions and conclusions expressed. If the opinion provider must resort to speculation to render the requested opinion, he/she must state, with specificity, why this question is outside the scope of a medical professional. 3. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M.C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs