Citation Nr: 1315966 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-22 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for service-connected diabetes mellitus, type II, with onychomycosis and erectile dysfunction, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1965 to September 1987. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Board remanded this case for further development. A June 2012 VA examination report suggests that the Veteran has coronary artery disease. He is a Viet Nam Veteran who was awarded a Combat Action Ribbon. The matter of service connection for ischemic heart disease is referred to the RO for appropriate action. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT 1. The Veteran's diabetes mellitus requires medication, insulin, and a restrictive diet; but does not necessitate the regulation of activities. Erectile dysfunction does not result in penile deformity and onychomycosis involves less than five percent of the entire body or of exposed areas affected and does not require systemic therapy or involve exfoliation, exudation, or itching of exposed surface or extensive area. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for diabetes mellitus, type II, with onychomycosis and erectile dysfunction, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.119 Diagnostic Codes 7913, 7522, 7813 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in July 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's November 2012 remand, VA sent the Veteran a letter later that month requesting that he complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for Davis Memorial Hospital (D.M.H.). He did not respond. VA provided the Veteran with a medical examination in November 2012. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. Therefore, this examination is adequate for VA purposes. Thus VA has complied with the November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran was originally granted service connection for diabetes mellitus, type II, by way of a May 2005 rating decision. At that time, he was awarded a 10 percent disability evaluation, effective October 28, 2004. The Veteran filed a claim for an increased disability evaluation in June 2006. In a March 2007 rating decision, the Veteran's disability was recharacterized as diabetes mellitus, type II, with onychomycosis of the bilateral toenail and erectile dysfunction. The 10 percent evaluation was continued, as was the 10 percent evaluation for hypertension, and the Veteran was granted service connection for peripheral neuropathy of the upper and lower extremities and awarded special monthly compensation for loss of use of a creative organ. Additional evidence was received and a June 2007 rating decision was issued. This rating decision recharacterized the Veteran's service connected hypertension as hypertension with diabetic nephropathy and increased that evaluation to 30 percent. The other evaluations were continued. In June 2008, the Veteran filed a claim for an increased disability evaluation, stating that he now required diabetes medication. This claim resulted in the November 2008 rating decision, on appeal which increased the Veteran's disability evaluation to 20 percent, effective June 30, 2008, the date that VA received the Veteran's claim for an increase. The Veteran has perfected his appeal with regard to this claim. 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). Different levels of compensation may be assigned from the time the increased rating claim is filed to the time a final decision is made where the Veteran has experienced multiple distinct degrees of disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must evaluate this claim in its entirety to determine whether a staged evaluation is appropriate. See id. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 . Diagnostic Code 7913 addresses diabetes mellitus. See 38 C.F.R. § 4.119. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. 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 rated, is rated 60 percent disabling. 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 rated, is rated 100 percent disabling. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Id. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. Diagnostic Code 7522 addresses erectile dysfunction; providing that deformity of the penis with loss of erectile power is rated 20 percent disabling, and the adjudicator is to review for entitlement to special monthly compensation under 38 C.F.R. § 3.350. 38 C.F.R. § 4.115b. In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Onychomycosis is rated under Diagnostic Code 7813 for dermatophytosis. 38 C.F.R. § 4.118. Under that code, such a disability is rated as disfigurement of the head, face, and neck (DC 7800); scars (DCs 7801-7805); or dermatitis (DC 7806), depending on the predominant disability. Id. As this disability is only noted to affect the nails, it does not affect the head, face, and neck. Likewise, no scarring has been associated with this condition. As such, Diagnostic Code 7806 is the most appropriate diagnostic criteria. Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated noncompensably (0 percent) disabling. 38 C.F.R. § 4.118. Dermatitis or eczema that involves at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period, is rated 10 percent disabling. Id. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period, is rated 30 percent disabling. Id. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, is rated 60 percent disabling. Id. Throughout the appeals period, the medical and lay evidence of record consistently notes that the Veteran's diabetes was treated with medication and insulin. See e.g., May 2010 statement, November 2012 VA examination. Additionally, some of this evidence also specifically notes that the Veteran was prescribed a special diet to control his diabetes. See e.g., November 2012 VA examination. The record does not show episodes of ketoacidosis or hypoglycemic reactions. Likewise, the medical evidence of record does not show that the Veteran's diabetes required regulation of his activities or prevented him from maintaining substantially gainful employment. See November 2012 VA Examination. Thus, his disability picture is consistent with the criteria for the existing 20 percent evaluation. The record does show erectile dysfunction. See e.g., August 2008 and November 2012 VA examinations. The November 2006 VA examiner specifically found the Veteran's genitalia to be normal. No medical or lay evidence contradicts this finding. Treatment records dated from July 2007 to August 2008 note normal hair and nails. The August 2008 examination found no skin disease. Based on the evidence described above, the Veteran's symptoms do not meet the requirements for an evaluation in excess of the currently assigned 20 percent. The Veteran's diabetes clearly requires both medication and insulin. In order to warrant the next higher evaluation of 40 percent, the evidence must show that the diabetes also required regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. The medical records from this time period do not show that any regulation of his activities was prescribed. Indeed, the November 2012 VA examination specifically found that the Veteran did not need to regulate his activities due to his diabetes. Likewise, the evidence of record during this time period does not show episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice monthly visits to a diabetic care provider. See id. Thus, the preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's diabetes. See 38 C.F.R. § 4.7. With regard to erectile dysfunction, there is no showing that it warrants a separate compensable evaluation. In order to obtain a minimal compensable evaluation, there must be loss of erectile power and penile deformity. On a November 2006 examination, it was specified that there was no penile deformity present. The recent records are silent with regard to any deformity and the Veteran has not alleged penile deformity in his lay statements. Without a showing of both criteria, the provisions for a compensable evaluation are not met or nearly approximated. With regard to onychomycosis, there is no showing that it warrants a separate compensable evaluation. In order to obtain a minimal compensable evaluation, it must involve at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. Treatment records during this period show normal nails. In this case, the record during the relevant time period does not show any complaints of or treatment for onychomycosis. As no percentage of the entire body has been shown to be affected and no systemic therapy has been prescribed, the Board finds no basis to assign a separate compensable rating for onychomycosis. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disabilities, referral for extraschedular consideration is not in order. The Board has also considered whether a total rating for compensation purposes based on individual unemployability (TDIU) is warranted. Generally, TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16. In this case, the record does not suggest that diabetes mellitus or any of its complications precludes the Veteran from working. The November 2012 VA examiner specifically found that the Veteran's diabetes did not prevent him from maintaining substantially gainful employment. Moreover, the record indicates that the Veteran has been employed during the appeals period. Thus, the evidence does not suggest that the Veteran's diabetes mellitus has rendered him unemployable. As such, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 20 percent for the Veteran's diabetes mellitus, type II, with onychomycosis and erectile dysfunction. See 38 C.F.R. § 4.7. ORDER An rating in excess of 20 percent for service-connected diabetes mellitus, type II, with onychomycosis and erectile dysfunction is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs