Citation Nr: 1317422 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-40 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for type II diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from September 2006 to September 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT Diabetes mellitus type II requires medication and a restricted diet, but no regulation of activities. CONCLUSION OF LAW The schedular criteria for an initial disability evaluation in excess of 20 percent for type II diabetes mellitus are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran all required notice in a November 2007 letter, prior to the rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal. VA obtained service treatment records and all relevant outstanding medical treatment records identified by the Veteran. VA also afforded the Veteran an appropriate VA medical examination. Further, there is no contention or indication in the evidence that there has been a material change in the severity of the appellant's service-connected diabetes since he was last examined. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the Veteran's claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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. §§ 3.321(a), 4.1 (2012). Diabetes mellitus is evaluated under Diagnostic Code 7913, which provides a 20 percent rating for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires 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; and a 100 percent rating is warranted when the 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). "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, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). In Camacho, a professional driver lost his job because he had insulin dependent diabetes mellitus. The Court held that this sort of evidence alone does not meet the criteria of "regulation of activities" to warrant the assignment of a 40 percent disability rating because it is a safety policy and not a medical assessment, "that the appellant's condition required that he not drive as a means to control his diabetes or that driving would aggravate his condition." Id at 365. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Based on the evidence presented, the Board finds that an evaluation in excess of the currently assigned 20 percent for diabetes mellitus is not warranted. In this regard, the Board notes that to warrant a higher evaluation the evidence must show diabetes mellitus type II requiring insulin, a restricted diet and regulation of activities. To warrant a higher rating for diabetes mellitus itself, under Diagnostic Code 7913, the 40 percent criteria are conjunctive not disjunctive-i.e., there must be insulin dependence and restricted diet and regulation of activities. See Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. Here, the evidence of record shows that the Veteran's diabetes mellitus requires medication and a restricted diet. The medical record is devoid of any showing of a requirement of regulation of activities by his medical providers. The service treatment records show that the Veteran was treated in February 2007 for diabetic keetoacidosis. He complained of losing weight, and not feeling well for the past three months. He noted having poor energy levels, difficulty staying awake, polyuria, polydipsia and parched throat. The assessment was new onset diabetes, presenting as diabetic ketoacidosis. He was placed on light duty and it was noted that he could go to the gym for separate workouts. He was placed on insulin and dietary counseling. In March 2007 it was noted that he was not to operate heavy machinery or work at heights. In April 2007, he was exercising regularly. In June 2007, it was noted that he was doing well with the insulin pump and had only occasional hypoglycemia. In August 2007, the Physical Evaluation Board found him to be physically unfit and determined that he should be separated from service. The Veteran was examined by VA in January 2008. The claims file was reviewed. His history was noted. It was indicated that he has been on an insulin pump and follows a diabetic diet. He reported that he had a few low blood sugar reactions that he was quickly able to correct. There were no emergency room visits due to the episodes. It was noted that his weight went down to 120 pounds but is now at 150 pounds. It was noted that there was no restriction of his activities other than that he was advised not to return to his pre-activated job due to sensitivity of the insulin pump to the high heat environment of the foundry. It was noted that he had no cardiac, peripheral vascular conditions, hypertension or erectile dysfunction. There were no bowel or bladder dysfunction and no numbness of the feet. He reported having numbness of the hands. Neurological examination was normal and the examiner stated that this included the hands. He was noted to be working as a machine operator. The examiner stated that there was no evidence of neuropathy. VA treatment records beginning in 2007 show that the Veteran was followed for diabetes mellitus type II. They further show that the Veteran was prescribed medication and advised to regulate his diet for control of his condition. In August 2008, VA called the Veteran and he reported he was just leaving work and things were going "ok." He noted that he was working as a mechanic at a transportation company. He noted he was using standard insulin injections but was back to the insulin pump. He noted that he was working on a lot of projects in his new home. In January 2009 it was noted that he was on a low carbohydrate diet and was physically active on the job. In June 2009, it was noted that he was doing heavy lifting at work. In August 2009, he reported that he was doing well. In February 2010 he noted that he was still using the insulin pump. He reported that he had been very busy at home and that he was in the process of a large remodeling job. He was noted to be still working as a machinist. The Veteran argues that his activities are in fact restricted. He reports that he has required regulation of activities. However, there is no documented medical restriction on his activities and, moreover, the Veteran's report is inconsistent with the documented medical record showing that the Veteran engages in activities at work and at home without restriction. Therefore, the Board finds that the Veteran's argument is not persuasive. The Board acknowledges that the Veteran is competent to report his symptoms. However, nothing in the record shows that he is medically required to regulate his activities. Moreover, the more probative evidence consists of that prepared by neutral skilled professionals, and such evidence shows that the Veteran is not required to regulate his activities due to diabetes mellitus. Therefore, his disability does not warrant an evaluation in excess of 20 percent under the schedular criteria. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 20 percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a) (2012). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the disability are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not warranted. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER An initial disability evaluation in excess of 20 percent for type II diabetes mellitus is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs