Citation Nr: 1316341	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  06-37 132	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a rating in excess of 40 percent for diabetes mellitus.  


REPRESENTATION

Appellant is represented by: Disabled American Veterans


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active service from December 1969 to December 1971.  

This matter is on appeal from the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO).

In April 2011, the Board granted a 40 percent rating for diabetes mellitus.  The Veteran appealed that decision to the Veterans Claims Court.  In a May 2012 Memorandum Decision, the Court vacated the Board's April 2011 decision and remanded this issue to the Board for further development.

While the Memorandum Decision did not specifically affirm the Board's allowance of an increased 40 percent rating for diabetes mellitus; nevertheless, as neither the Court nor the Veteran has identified any issues or errors with that aspect of the decision, and as the increase has already been effected by the RO's January 2012 rating decision, the Board simply confirms its intent to retain the increase to 40 percent for the reasons set out in the April 2011 decision.  The Board has characterized the issue remaining on appeal as entitlement to a rating in excess of 40 percent for diabetes mellitus.  

In November 2012, the Board remanded the claim to the RO for additional evidentiary development to comply with the Court order.  It has since been returned to the Board for further appellate action.  

In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence.  

The issue of entitlement to service connection for delayed healing of the skin as secondary to diabetes mellitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  See 38 C.F.R. §19.9(b)(2012).



FINDING OF FACT

Diabetes has been manifested by the requirement of insulin, a restricted diet, and regulation of activities but episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider have not been shown.


CONCLUSION OF LAW

The criteria for a rating in excess of 40 percent for diabetes mellitus have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code (DC) 7913 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  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 several grades of disability.  38 C.F.R. § 4.1 (2012).  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  

However, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).  

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular 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 veteran.  38 C.F.R. § 4.3. 

While a veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Historically, in May 2004, the RO granted service connection and assigned a 20 percent rating for diabetes mellitus, pursuant to DC 7913, effective October 16, 2003.  The January 2012 rating decision subsequently granted a higher 40 percent rating, effective January 30, 2006.  The Veteran contends he is entitled to a higher rating for diabetes mellitus.

The criteria of DC 7913 provides as follows:

* a 40 percent rating where diabetes requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities); 
* a 60 percent rating where the disease requires insulin, a 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.  
* a 100 percent rating where diabetes 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.

Note (1) to DC 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 DC 7913).  Noncompensable complications are considered part of the diabetic process under DC 7913.  See 38 C.F.R. § 4.119, DC 7913.  

The rating of diabetes mellitus under DC 7913 includes successive rating criteria, whereby the evaluation of each higher rating includes the criteria of each lower rating, such that if a component is not met at any one level, a veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive 'and' in a statutory provision means that all of the conditions listed in the provision must be met).  

The Board finds that "with" and "plus," as used in the rating criteria are the equivalent of "and," signifying that all of the conditions listed in the provision must be met.  The disjunctive "or" separates episodes of ketoacidosis and hypoglycemic reactions signifying that either condition will satisfy that criterion, but that other criteria separated by conjunctives must also be satisfied.  

Thus, the current 40 percent rating contemplates the requirements of insulin, a restricted diet, and regulation of activities.  In order to warrant a 60 percent rating, the evidence must also demonstrate two additional criteria: (1) episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, (2) plus complications that would not be compensable if separately evaluated.  

After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that neither the criteria for a 60 percent nor 100 rating have been met.  Regarding episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, the evidence establishes that there have been no episodes of ketoacidosis, and that, while there have been episodes of hypoglycemic reactions, they have never required hospitalization or twice a month visits to a diabetic care provider.  

The March 2006 VA examiner found that the Veteran had not experienced ketoacidosis.  A hospitalization six months prior was primarily related to evaluation of heart problems.  The October 2006 VA examiner noted that the Veteran would experience hypoglycemic episodes if he did a lot of walking or went shopping; however, these episodes were resolved by eating a piece of candy.  

The examiner specifically found that the Veteran had not required any hospitalization for diabetes.  He also noted that there had been no episodes of ketoacidosis.  The May 2010 VA examiner also noted that the Veteran experienced episodes of hypoglycemia with nervous shakes, which he treated with hard candy, but the examiner noted that he has made no trips to the emergency room.  The examiner noted no history of ketoacidosis.  

Regarding additional complications, service connection is in effect for diabetic sensory polyneuropathy for the bilateral lower extremities and erectile dysfunction, and special monthly compensation has been established based on loss of use of a creative organ.  The Veteran was hospitalized in February 2006 for evaluation of heart problems.  He was found to have arteriosclerotic heart disease with 10 percent narrowing of a couple of his vessels, and left ventricular hypertrophy that his cardiologist related to his longstanding hypertension.  

The October 2006 VA examiner noted no evidence of eye involvement.  There was no evidence of diabetic nephropathy.  Hypertension was found not to be related to diabetes mellitus.  The examiner also found that coronary artery disease was most likely related to hypertension and a 40-year history of cigarette smoking and was not due to diabetes mellitus.  

The May 2010 VA examiner noted normal renal function.  The Veteran's eyes were in good shape with no clinical signs of glaucoma, cataracts or retinopathy.  There were no signs of upper extremity neuropathy.  Hypertension was noted but was found not to be due to diabetes mellitus.  While the examiner noted normal renal function, he also listed the diabetic complications as early diabetic nephropathy.  A VA examination in October 2011 includes the examiner's opinion that hypertension was not a result of diabetes mellitus since the Veteran's renal function was normal and diabetes was of recent onset.  

Thus, with the exception of conflicting findings regarding nephropathy, there appear to be no complications of diabetes mellitus that are not already separately service-connected and compensated.  In any event, the fact that the Veteran does not meet the criterion of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider means that, even if he were found to have uncompensated diabetic nephropathy, a 60 percent rating is still not warranted, as the criteria are conjunctive, and meeting this criterion alone is not sufficient.  

The Board also acknowledges that an October 2006 examiner noted that the Veteran had lost weight, going from 225 to 206.  Progressive loss of weight and strength is a criterion associated with a 100 percent rating; however, his weight loss was noted to be intentional, as he was dieting.  Weight loss as a result of dieting is thus not a complication of diabetes mellitus.  

Moreover, the successive nature of the criteria mean that meeting this particular criterion would not allow for assignment of a rating at the 60 percent or 100 percent levels where, as here, the criterion of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider is not met.  

The Board has considered the Veteran's lay assertions that he is entitled to a higher rating.  In the notice of disagreement, he noted that he took insulin, watched his diet, and regulated his activities to control his diabetes mellitus.  On the VA Form 9, he reflected that his diabetes mellitus was worse and that he was taking 2 shots per day of insulin.  In correspondence received in March 2013, he indicated that he was dependent upon insulin, that he took multiple doses of insulin per day, that he was on a diabetic restricted diet, that he had erectile dysfunction, and that his legs and feet hurt.  

The need for insulin, a restricted diet, and regulation of activities are fully considered in the 40 percent rating.  Erectile dysfunction is separately service connected and is compensated in the special monthly compensation the Veteran is receiving.  The pain in his lower extremities is also separately service connected and compensated.  Therefore, his lay statements do not establish a higher rating.

In correspondence received in November 2010, the Veteran reported that he did not go to the doctor twice a month because he could not afford the cost.  He noted that he had passed out and fell a few times, and when he came to, his sugar was always too low or too high.  He indicated that when he went to the store, it took him a few days to get over it.  He stated that his vision changed daily, and that, cuts and scratches took forever to heal.  

The Veteran's account of passing out is interpreted as a reference to hypoglycemic reactions; however, the presence of hypoglycemic reactions is acknowledged by the Board, as discussed in detail above.  Even if the Board were to accept the Veteran's account of passing out several times as true, the account does not provide probative evidence regarding the rating criteria, which refer to whether hospitalization is required, or whether twice a month visits to a diabetic care provider are required.  Indeed, his account is unspecific as to the number and frequency of these episodes.  Further, he acknowledges that he has not sought treatment or evaluation in these instances.  

While the Veteran is competent to describe his symptoms and their frequency, the rating criteria require not just the occurrence of hypoglycemic episodes, but reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider.  The clinical evidence indicates that neither hospitalization nor twice a month visits to a diabetic care provider are necessary to treat his hypoglycemic episodes.  

While the Veteran appears to suggest, albeit indirectly, that these episodes are worse than is reflected in the clinical evidence, the Board finds that the most accurate and credible evidence as to whether he believes these episodes to be of such severity as to require hospitalization or treatment from a diabetic care provider are his own actions.  As he has acknowledged, he has not sought such treatment in any instance of a hypoglycemic reaction.  Indeed, he has twice told treating clinicians that he effectively treats such episodes with candy.  Based on the clinical findings and his account, the Board finds this essential criterion for a 60 percent rating is not met.  

Regarding the assertion that there may be a skin complication of the Veteran's diabetes mellitus that is manifested by delayed healing of cuts and scratches, service connection is not in effect for a skin disability, and the claim has been referred to the RO.  Even if this were found to be a complication of diabetes mellitus, whether compensable or noncompensable, it would not support an increased rating where the criterion discussed above is not met.  

For the reasons discussed, the Board finds that the weight of the evidence is against a finding of an initial rating in excess of 40 percent for diabetes mellitus.  To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply.  

With respect to the claim, the Board has applied Mittleider v. West, 11 Vet. App. 181 (1998) and has attributed all the Veteran's symptoms to his service-connected disability.  With that in mind, the Board has considered whether referral for extra-schedular consideration is warranted.  In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made.  38 C.F.R. § 3.321(b)(1).  There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate.  Thun v. Peake, 22 Vet. App. 111 (2008).  

First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule.  Id.  

If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as "governing norms."  Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization).  

If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.

The record does not establish that the rating criteria are inadequate.  To the contrary, the very symptoms that the Veteran describes and the findings made by the various medical professionals are the symptoms included in the criteria found in the rating schedule for his disability.  

Specifically, the Veteran has described his diabetes symptoms as the need for insulin, a restricted diet, regulation of activities, and the occurrence of hypoglycemic episodes.  The schedular rating criteria specifically provide for ratings based on the presence of these symptoms.  Such factors are explicitly part of the schedular rating criteria.  Moreover, higher schedular ratings are yet available where appropriate symptomatology is shown.  

Because the schedular rating criteria are adequate to rate the disability, there is no exceptional or unusual disability picture to render impractical the application of the regular schedular standards.  For these reasons, the Board finds that the criteria for referral for extraschedular rating have not been met. 

Finally, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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).  

When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies.  See 38 U.S.C.A. § 7261(b)(2) (West 2002).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) 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.  

In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in March 2006, prior to the initial RO decision that is the subject of this appeal.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.   

Moreover, with respect to the Dingess requirements, the Veteran was given notice of what type of information and evidence he needed to substantiate his claim for an increased rating as this is the premise of the claim.  It is therefore inherent that the he had actual knowledge of the rating element of the claim.  In addition, he was provided with notice of the type of evidence necessary to establish an effective date for the disability on appeal by correspondence dated in June 2006.  Any questions as to the appropriate effective date to be assigned are moot as the claim has been denied.  

Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication.  Therefore, the presumption of prejudice is rebutted.  For this reason, no further development is required regarding the duty to notify.

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). 

In this case, the Board finds that VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA and private treatment records, records from the Social Security Administration (SSA), and the Veteran's written assertions.  The Board notes that it remanded this appeal in December 2009 for the purpose of obtaining private treatment records and those records were obtained.  

The Board also notes that the sole basis for the Court's Memorandum Decision in May 2012 was to obtain Social Security Administration (SSA) records, which have been obtained.  The Board also finds that there has been substantial compliance with its November 2012 remand.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Here, the Board instructed the RO to request from the SSA all records related to the Veteran's claim for social security disability benefits, including all medical records and copies of any decisions or adjudications and associate them with the record.  All negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate.  In response to the Board's remand instructions, the RO requested and obtained the pertinent records from the SSA and associated those records with the claims file.  

In addition, the Veteran was afforded VA examinations to address the manifestations and severity of his diabetes mellitus in March 2006, October 2006, and May 2010.  These examinations are adequate for purposes of adjudicating his claim.  Each examination was performed by a medical professional based either on a review of claims file or solicitation of history and symptomatology from the Veteran, and each was thorough and addressed the pertinent rating criteria.  The examiners addressed the complications associated with diabetes mellitus and offered opinions as to whether disabilities such as hypertension and coronary artery disease were related to the diabetes.

Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance is required to fulfill VA's duty to assist 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).


ORDER

A rating in excess of 40 percent for diabetes mellitus is denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs