Citation Nr: 1319569 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 09-49 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to a higher initial rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the feet, claimed as secondary to service-connected diabetes mellitus type 2. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from January 1968 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. FINDINGS OF FACT 1. For the entire period of this appeal, the Veteran's service-connected diabetes mellitus has required insulin and a restricted diet, but not regulation of activities. 2. Peripheral neuropathy of the feet is proximately due to the Veteran's service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus have not been met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, peripheral neuropathy of the feet is secondary to the service-connected diabetes. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). A February 2009 letter provided the Veteran with notice of the evidence required to substantiate the claim for service connection for peripheral neuropathy of the feet. The February 2009 letter notified the Veteran of what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The February 2009 letter included notice of how disability ratings and effective dates are determined. Moreover, as this issue is being fully granted in this decision, there is no need to further discuss how VA has fulfilled the duties to notify and assist regarding this issue. The Veteran's appeal for a higher initial rating for type 2 diabetes mellitus stems from the disagreement with the initial rating assigned in the April 2009 rating decision which granted service connection for type 2 diabetes mellitus and assigned a 20 percent disability rating for the rating period from December 18, 2008. Because the appeal of this issue stems from the Veteran's disagreement with the initial rating following the grant of service connection for diabetes mellitus, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (Court) have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2012) (no duty to provide VCAA notice arises upon receipt of a Notice of Disagreement). With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, and has provided VA examinations. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service VA treatment records and private treatment records, and the Veteran's statements. The Veteran was afforded a VA examination for diabetes mellitus and peripheral neuropathy in January 2009. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination considered all the pertinent evidence of record, including the service treatment records and post-service treatment records, the Veteran's statements and history, and clinical examination of the Veteran. The VA examiner provided a medical opinion regarding peripheral neuropathy based upon the review of the claims file and examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Disability Ratings - Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has challenged the initial disability rating assigned to service-connected diabetes mellitus. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999) (noting distinction between claims stemming from an original rating versus increased rating). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as a "staged" rating. Id. at 126. The Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Initial Rating for Diabetes Mellitus An April 2009 rating decision granted service connection for diabetes mellitus and assigned a 20 percent initial disability rating from December 18, 2008. The Veteran has appealed the initial rating assigned. The Veteran alleges that his disability meets the requirements for a 40 percent disability rating. He contends that a higher rating of 40 percent is warranted because medical records show that he takes insulin, is on a diet, and that he has to exercise. Diabetes mellitus is rated according to Diagnostic Code 7913. A 20 percent rating is assignable for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assignable for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is assignable for 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. A 100 percent rating is assignable for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenous occupational and recreational activities). 38 C.F.R. § 4.119. After a review of all the evidence of record, the Board finds that, for the entire period of this appeal, the Veteran's service-connected diabetes mellitus has required insulin and a restricted diet, consistent with the criteria for a 20 percent rating, but not regulation of activities required for a 40 percent disability rating under Diagnostic Code 7913. Upon VA examination in January 2009, the Veteran reported a three-year history of diabetes mellitus, that he was treated with oral medication and insulin, and that he had not visited a diabetic care provider for ketoacidosis or a hypoglycemic reaction. He reported that he did not have a history of diabetic ketoacidosis and did not have problems with hypoglycemia. The January 2009 VA examiner indicated that the effect of the condition on daily activities was pain with walking. VA outpatient progress notes show treatment for diabetes mellitus. An October 2008 record reflects that the Veteran was instructed to take insulin and to bike five times a week. He was advised to avoid sweets. A January 2009 VA outpatient treatment record noted that the Veteran was treated with insulin and glipizde. The evidence of record establishes that for the entire initial rating period the Veteran has required insulin, oral medication, and a restricted diet, but does not show that regulation of activities is required for any period. Medical evidence is required to demonstrate or establish a regulation of activities. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). In discussing the meaning of "regulation of activities," the Court held that, in order for a claimant to be entitled to a 40 percent disability rating for diabetes under Diagnostic Code 7913, the evidence must show that it is medically necessary for the claimant to avoid "strenuous occupational and recreational activity." Camacho, 21 Vet. App. at 360. The medical evidence of record does not establish that it is medically necessary for the Veteran to avoid strenuous recreational and occupational activities. The record does not contain evidence showing that the Veteran was instructed to avoid activities because of diabetes mellitus. The Veteran contends that the requirements for a 40 percent rating are met based upon medical records showing that he was instructed to exercise. VA outpatient treatment records reflect that the Veteran was advised to continue to bike five times a week or more if possible. The Board concludes that this instruction regarding exercise does not meet the requirement of restriction of activities, as it does not establish that the Veteran was instructed to avoid strenous occupational or recreational activity. Rather, the VA medical records show that exercise was recommended. Thus, the Board concludes that the weight of the evidence is against a finding of restriction of activities for any period as required for a 40 percent disability rating. For these reasons, the Board finds that the weight of the evidence is against the assignment of an initial rating in excess of 20 percent for diabetes mellitus for any period. As there is a preponderance of the evidence against the appeal for a higher initial rating in excess of 20 percent for diabetes mellitus, the appeal must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's disability level and symptomatology. The rating criteria consider whether diabetes mellitus requires insulin, a restricted diet, an oral hypoglycemic agent or regulation of activities, and whether there are episodes of ketoacidosis, hypoglycemic reactions and visits to a diabetic healthcare provider required. Because the schedular rating criteria are adequate to rate the Veteran's diabetes mellitus, 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. 38 C.F.R. § 3.321(b)(1) . Service Connection for Peripheral Neuropathy of the Feet The Veteran contends that he has peripheral neuropathy of the feet that is manifested by pain (neuralgia), numbness, and tingling. He contends the peripheral neuropathy is either caused or aggravated by service-connected diabetes mellitus. Service connection for diabetes mellitus was granted in an April 2009 rating decision, effective from December 2008. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. Id. To prevail on the theory of secondary service causation, generally, the record must show (1) medical evidence of a current disability, (2) a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Effective from October 10, 2006, 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52,744 (2006). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of requiring the establishment of a baseline level of disability for the non-service-connected condition prior to the claimed aggravation. As the Veteran's claim was received after October 10, 2006, the amended version of 38 C.F.R. § 3.310 is applicable to the Veteran's claim. After a review of all the evidence, the Board finds that the evidence is at least in equipoise on the questions of whether the Veteran has a disability of the lower extremities that accounts for his symptoms, and whether the disability of the lower extremities is caused or aggravated by the service-connected diabetes mellitus. While the Veteran has reported various symptoms including tingling, numbness, and pain to the toes and feet, testing on various occasions did not reveal significant clinical findings resulting in a diagnosis of distinct neurological disability, including peripheral neuropathy. Upon VA examination in January 2009, the Veteran reported tingling and numbness of the toes and feet. He is competent to report such symptoms as tingling and numbness, as well as pain, as such symptoms are observable by use of the senses. See Layno v. Brown, 6 Vet. App. 465 (1994) (stating that a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). Physical examination of the extremities showed no atrophic skin changes, ulceration, gangrene, ischemic limb pain, or persistent coldness. Examination of the right peripheral pulses revealed 2+ femoral pulse, popliteal pulse, dorsalis pedal pulse, and anterior tibial pulse. Examination of the left peripheral pulses revealed 2+ femoral pulse, popliteal pulse, dorsalis pedal pulse and anterior tibial pulse. Motor and sensory examination were within normal limits. The right lower reflexes revealed knee jerk 2+ and ankle jerk 2+. The left lower extremity revealed knee jerk 2+ and ankle jerk 2+. The January 2009 VA examiner indicated that peripheral nerve involvement was not evident on examination. The VA examiner opined that, for the claimed condition of peripheral neuropathy of the feet, there was no diagnosis because there was no pathology to render a diagnosis. The medical history completed by the Veteran in conjunction with the January 2009 VA examination reflects that he reported tingling and numbness in his toes and feet and "off and on severe pain in toes." VA outpatient treatment records dated in January 2009 reflect that the Veteran reported that his right great toe hurt and reported knife-like pain. He reported that he was sensitive to cover and socks, more at night, and was taking Gapapentin. The Veteran submitted a copy of an email communication from a VA nurse practitioner, which noted with regard to peripheral neuropathy that the Veteran reported knife-like pain and was on gabapentin for pain in his feet. In a statement dated in August 2009, the Veteran reported that his primary care provider had increased the medication for neuropathy. In this case, the January 2009 VA examiner concluded that the Veteran did not have pathology to render a diagnosis. The January 2009 VA examination and VA outpatient treatment records indicate that the Veteran reported foot pain, tingling, and numbness. The Veteran is competent to report symptoms of pain, tingling, and numbness in the feet because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. In light of the VA outpatient records which reflect treatment of the foot pain suggested to be associated with diabetes, the May 2009 VA practitioner's statement indicating the Veteran was treated for peripheral neuropathy, and the fact that treatment with gabapentin was undertaken, the Board will resolve reasonable doubt in the Veteran's favor to find that he has a current disability of peripheral neuropathy of the feet. On the question of whether the disability of the lower extremities is caused or aggravated by the service-connected diabetes mellitus, the evidence shows that the peripheral neuropathy had its onset after the diabetes. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for peripheral neuropathy of the feet, as secondary to service-connected diabetes mellitus, have been met. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. ORDER An initial disability rating in excess of 20 percent for diabetes mellitus is denied. Service connection for peripheral neuropathy of the feet, as secondary to service-connected diabetes mellitus, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs