Citation Nr: 1319618 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 08-25 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for type II diabetes mellitus with polyradiculopathy of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, continued a 20 percent rating for the Veteran's service-connected type II diabetes mellitus. The case was previously before the Board in December 2010 when it was remanded for additional development. For clarification, the Board notes that the prior remand indicated that the Veteran, in his August 2008 VA Form 9, limited his appeal to the matter of an increased rating for his type II diabetes mellitus (withdrawing his appeal regarding higher ratings for peripheral neuropathy of the left and right lower extremities). Hence, the matter on appeal is characterized accordingly. The Board finds that it properly has jurisdiction over a claim seeking entitlement to TDIU, reasonably raised in a VA examination report and by the Veteran's attorney in July 2012 correspondence, and has included such issue on the preceding page. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, TDIU is an element of an initial rating or increased rating). Additionally, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant'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. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. FINDING OF FACT At no time during the appeal period is the Veteran's diabetes mellitus shown to have required regulation of activities to treat his diabetes. CONCLUSION OF LAW A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (Code) 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Proper 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In this case, the notice requirements were accomplished in a letter sent in December 2006 prior to the initial rating decision. Additional notice was sent in May 2008. VA also has a duty to assist the Veteran in the development of his claim. This duty includes assisting the Veteran 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 relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service, VA, and private treatment records (including records from the Social Security Administration) have been obtained, in compliance with the Board's December 2010 remand instructions. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations. The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Diabetes mellitus is rated under Diagnostic Code 7913, which provides for a 20 percent rating when the disease requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when insulin, a restricted diet, and regulation of activities are required. A 60 percent rating is warranted when insulin, a restricted diet and regulation of activities are required, along 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 requires more than one daily injection of insulin, restricted diet, and regulation of 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. 38 C.F.R. § 4.119. Note 1 following Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable evaluations are considered part of the diabetic process under Code 7913. Historically, a March 2005 rating decision granted service connection for diabetes, rated 20 percent disabling, effective November 15, 2004. A September 2005 rating decision granted an earlier effective date of November 15, 2003 for the award of service connection for diabetes mellitus. The instant claim for increase was received in November 2006. VA treatment records show that in May 2006, the Veteran's medication included Metformin 500mg, three times per day. It was also noted that he would begin Neurontin 300mg, three times per day. In October 2006, it was noted he was unable to tolerate the Neurontin, and he was instructed to discontinue its usage. On December 2006 VA examination, it was noted that the Veteran's claim file was reviewed. The examiner noted that the Veteran has had diabetes for 20 years. His treatment included Metformin 500mg three times a day (which began in November 2004), and a restricted diet. There was no history of hospitalization or surgery associated with the diabetes. The examiner also noted that while the Veteran had episodes of hypoglycemic reactions or ketoacidosis, such did not require hospitalization. The Veteran visits his diabetic care provider monthly or less often. It was indicated the Veteran has low back pain and pain in his hips and upper thighs related to his diabetic neuropathy. The examiner's diagnoses included diabetic polyradiculopathy of the lumbar spine, manifested by low back pain with radiculopathy to the hips and thighs. The examiner opined that the Veteran's diabetic polyradiculopathy was at least as likely as not secondary to his diabetes, and a separate pathology from the peripheral neuropathy of the lower extremities. An x-ray at that time was interpreted as showing no significant abnormality. The examiner determined that the diabetic polyneuropathy manifested in pain in the lumbar spine radiating to the legs. Medical reports from the Social Security Administration note a September 2007 CT scan revealed hypertrophic facet arthropathy, multi level degenerative disc findings and some neural foraminal narrowing. In his August 2008 VA Form 9 (Substantive Appeal), the Veteran stated he experienced pain, discomfort, stiffness, and spasm in his lumbar spine. He also related he is unable to bend over to touch his knees or bend from side-to-side. VA treatment records show that in April 2009, the Veteran was instructed to change his diet to a 2000 calorie carbohydrate-controlled diet. His medication still included Metformin 500mg, three times per day. In December 2010, the Board remanded the Veteran's claim for a higher rating for diabetes, in pertinent part, for a diabetes examination to determine the current severity of his diabetes, and a neurological examination to determine the extent of his polyradiculopathy. VA treatment records show that in December 2010, the Veteran's medication for his diabetes was changed to Metformin 1000, two times per day. On January 2012 VA examination, it was noted that the Veteran's diabetes is treated by a restricted diet and a prescribed oral hypoglycemic agent, Metformin 1000mg, two times per day. His treatment did not include a regulation of activities. The Veteran visits his diabetic care provider less than 2 times per month. There were no episodes of hypoglycemia or ketoacidosis requiring hospitalization over the past 12 months. There has been no progressive unintentional weight loss attributable to the diabetes. It was noted that the Veteran's diabetes is well-controlled on his current regimen. On physical examination, the Veteran had moderate incomplete paralysis of the lower extremities, as well as mild bilateral lower extremity pain, numbness and paresthesias and/or dysesthesias. Strength testing of the upper and lower extremities was normal (5/5). Deep tendon reflexes of the upper and lower extremities were decreased (1+). Light touch/monofilament testing was normal in the upper extremities, and absent in the lower extremities. What distinguishes the schedular criteria for the current, 20 percent, rating for diabetes from those for the next higher, 40 percent, rating is that in addition to requiring diet and insulin for control, the diabetes must also require regulation of activities (defined as the "avoidance of strenuous occupational and recreational activities"). 38 C.F.R. § 4.119, Code 7913 (defining term within criteria for a 100 percent rating). The Board notes that the criteria for the progressively increasing ratings for diabetes are stated in the conjunctive rather than the disjunctive, i.e., each level of increase in the rating requires additional criteria which must be met to warrant the increase in the rating. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). The record does not show that at any time during the appeal period the Veteran's diabetes has required regulation (avoidance) of activities. The December 2006 VA examiner noted that the Veteran's treatment for his diabetes was limited to an oral hypoglycemic agent and a restricted diet. The January 2012 VA examiner specifically indicated that the Veteran's treatment did not include a regulation of activities. VA treatment records show no evidence, or suggestion, the Veteran was instructed to regulate his activities in order to treat his diabetes. Accordingly, the evidence does not show that at any time during the appeal period manifestations of the Veteran's diabetes mellitus satisfied, or approximated, the criteria for the next higher, 40 percent, rating. See 38 C.F.R. § 4.7. Consequently, such rating is not warranted. Furthermore, the record does not reflect any additional separately compensable complications of diabetes. Notably, peripheral neuropathy of the upper and lower extremities and loss of use of a creative organ for erectile dysfunction, are already separately rated, and those ratings are not at issue herein. Symptomatology associated with those disabilities can therefore not be considered in assigning an evaluation for his diabetes. 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran has reported symptomatology related to his lumbar spine. As indicated above, the December 2006 VA examiner diagnosed the Veteran with diabetic polyradiculopathy of the lumbar spine, manifested by low back pain with radiculopathy to the legs, separate from his peripheral neuropathy of the lower extremities. The examiner did not identify disc disease at that time. Subsequently, however, the Veteran has been diagnosed as having degenerative disc disease of the lumbar spine, a condition which is not service connected. Moreover, on the January 2012 VA examination, the examiner, a medical doctor, found decreased range of motion of the thoracolumbar spine with pain, but no evidence of muscle spasm, guarding, or localized tenderness. The examiner noted a September 2008 CT scan of the thoracolumbar spine that revealed degenerative disc disease. The examiner opined that the Veteran's complaint of lower back pain was most likely from his degenerative disc disease of the thoracolumbar spine. Additionally, the examiner opined, after reviewing medical literature, that diabetes mellitus has no impact on degenerative disc disease of the lumbosacral spine, and are manifested by separate pathology. Thus, while it is clear that the Veteran has complaints and symptomatology regarding his lumbar spine, the January 2012 attributed those to nonservice connected degenerative disc disease, and further opined that the degenerative disc disease was not caused or aggravated by his peripheral neuropathy of the lower extremities. The Board finds this opinion persuasive as it was provided by a physician qualified to opine on such a matter, involved review of medical literature, and was based on a review of the evidence of record. As the Veteran's back pain has been attributed to nonservice connected degenerative disc disease, it cannot be considered in evaluating his diabetes. 38 C.F.R. § 4.14 (the use of manifestations not resulting from service connected disability for evaluating a service connected disability is to be avoided). With regard to the polyradiculopathy as it pertains neurological complaints in the legs, the Board notes the Veteran is already compensated for such symptoms by the separate ratings for diabetic peripheral neuropathy. While the diabetic peripheral neuropathy may be a distinct entity from polyradiculopathy, the symptoms nevertheless overlap. Thus, it would constitute impermissible pyramiding to evaluate the same symptoms under two different disabilities. 38 C.F.R. § 4.14. Notwithstanding, there is no evidence during the appeal period to show that the lower extremity symptoms from peripheral neuropathy and polyradiculopathy, considered together, warrant an evaluation in excess of the 20 percent ratings presently assigned under Diagnostic Code 8520. In this regard, the most recent VA examination noted no more than moderate incomplete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (moderate incomplete paralysis of the sciatic nerve warrants a 20 percent evaluation). Accordingly, a separate rating for diabetic polyradiculopathy is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's diabetes mellitus, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. In this case, the rating criteria for the Veteran's service-connected diabetes mellitus reasonably describe the Veteran's disability level and symptomatology, and provide for higher or separate ratings for additional or more severe symptoms, which have not been shown. The medical evidence does not show that the Veteran's service-connected diabetes mellitus causes unusual factors such as frequent hospitalizations or marked interference with employment beyond that contemplated by the rating schedule. The rating criteria are therefore adequate to evaluate the diabetes mellitus. Consequently, referral for extraschedular consideration is not warranted. ORDER A rating in excess of 20 percent for diabetes mellitus with lumbar polyradiculopathy is denied. REMAND Although the Board regrets additional delay, a remand is necessary regarding the issue of entitlement to TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Veteran's attorney has argued that entitlement to a TDIU is warranted. The record shows that the Veteran retired in October 2004 as a hospital accountant. His educational background includes two years of college. In March 2010, the Veteran was found disabled, in part, due to his diabetes mellitus and peripheral neuropathy by SSA. The Board notes that SSA determinations as to employability are not binding on VA as SSA subscribes to different statutory and regulatory criteria. See Anderson v. Brown, 5 Vet. App. 347, 354 (1993) (quoting Collier v. Derwinski, 1 Vet. App. 413, 417 (1991)). The Board notes that the Veteran does meet the criteria for a TDIU, as the evaluations for his diabetes and the separately rated complications of peripheral neuropathy combine to an evaluation of 60 percent. Disabilities arising from a common etiology will be considered as one disability for purposes of a TDIU under 38 C.F.R. § 4.16(a). As the claim for a TDIU has not yet been adjudicated by the RO, remand for appropriate development, to include VCAA notice, is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that advises the Veteran about what is needed to substantiate a claim for a TDIU. The Veteran should be asked to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Obtain relevant treatment records from the Beckley, West Virginia VA Medical Center dating since March 2011. 3. Return the claims file to the January 2012 VA examiner to obtain an opinion as to whether the Veteran is unemployable due to his service connected diabetes and related conditions. After review of the claims file and any relevant electronic VA treatment records, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, his service connected diabetes and neuropathic disabilities of the upper and lower extremities, considered along with his service connected PTSD, hearing loss, tinnitus, and erectile dysfunction, render him unable to secure or follow a substantially gainful occupation. A rationale for the opinion expressed should be set forth. If an additional examination is deemed necessary, one should be scheduled. 4. After the above has been completed to the extent possible and any additional development deemed necessary is accomplished, adjudicate the claim for a TDIU. If the benefit sought on appeal is denied, the RO should furnish to the Veteran and his attorney an appropriate supplemental statement of the case and affords the appropriate time period to respond. The appellant has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs