Citation Nr: 1319697	
Decision Date: 06/18/13    Archive Date: 06/27/13

DOCKET NO.  08-03 323	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
 
 
THE ISSUE
 
What evaluation is warranted for Type II diabetes mellitus from January 22, 2009?
 
 
REPRESENTATION
 
Appellant represented by:  Texas Veterans Commission
 
 
ATTORNEY FOR THE BOARD
 
Mary E. Rude, Associate Counsel
 
 
INTRODUCTION
 
The Veteran served on active duty from June 1964 to June 1967. 
 
This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
 
In November 2012, the Board denied entitlement to a rating in excess of 10 percent for Type II diabetes mellitus prior to January 22, 2009, and remanded the claim of entitlement to a rating in excess of 20 percent for Type II diabetes mellitus from January 22, 2009 for additional development.  The issue has now been returned to the Board for further appellate consideration.
 
As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim, known as Virtual VA.  A review of the documents reveals that they contain VA treatment records relevant to the issue on appeal.  
 
 
FINDING OF FACT
 
From January 22, 2009, the Veteran's Type II diabetes mellitus did not require a regulation of activities (i.e., the avoidance of strenuous occupational and recreational activities).
 
 
CONCLUSION OF LAW
 
The criteria for an evaluation in excess of 20 percent for Type II diabetes mellitus from January 22, 2009 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.7, 4.119, Diagnostic Code 7913 (2012).
 
 
 
 

REASONS AND BASES FOR FINDING AND CONCLUSION
 
Duties to Notify and Assist
 
The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  In a December 2006 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims, including what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also provided notice of how disability ratings and effective dates are determined.  Applicable rating criteria were set forth in correspondence dated in January 2009.  The claim was last readjudicated in an April 2013 supplemental statement of the case.  Hence, any defect with regard to the timing or content of the notice to the appellant is harmless.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
 
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order.  Pursuant to the November 2012 remand, the Appeals Management Center (AMC) sent the Veteran a letter requesting that he submit additional information regarding treatment for diabetes mellitus.  The AMC acquired all relevant VA treatment records and afforded the Veteran an additional VA examination in February 2013; all treatment records and examination reports have been associated with the claims file or Virtual VA electronic file.  Hence, the RO/AMC has substantially complied with the November 2012 remand instructions, and no further action is warranted.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
 
In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).
 

Relevant Laws and Regulations
 
Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings 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. § 4.1 (2012).
 
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1999).  In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  Following an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.  The issue decided herein deals only with the period since January 22, 2009, as the prior "staged period," that of November 16, 2006 to January 21, 2009, has already been adjudicated by the Board in a November 2012 decision.
 
Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).
 
For diabetes mellitus requiring insulin or an oral hypoglycemic agent and restricted diet, a 20 percent rating is warranted.  For diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, a 40 percent rating is warranted.   Regulation of activities is described as "avoidance of strenuous occupational and recreational activities."  38 C.F.R. § 4.119, Code 7913. 
 
Analysis
 
The Veterans seeks entitlement to an increased evaluation for Type II diabetes mellitus.  The Veteran was granted service connection for diabetes mellitus in February 2007 with an evaluation of 10 percent, and in March 2012 the rating was raised to 20 percent, effective date January 22, 2009.  
 
The Veteran's VA treatment records show that as of January 22, 2009, in addition to receiving recommendations on monitoring his diet to manage diabetes mellitus, he was prescribed Metformin, an oral hypoglycemic medication.  In April 2009, it was again noted that the Veteran's diabetes mellitus was managed with oral medication.  This was again noted in January 2010, and a diabetic foot exam showed that skin and nails were intact with no signs of lesions with normal dorsalis pedis and posterior tibial pulses.  The Veteran's VA treatment records show numerous additional check-ups which indicate that his diabetes mellitus was managed with only diet and oral hypoglycemic agent, until August 2011, when he was prescribed daily injections of insulin.  

In February and April 2012, the Veteran had podiatry consults which found prominent exostosis of the first metatarsal cuneiform joint bilaterally but no open lesions.  In May 2012, the examiner noted long, thick and discolored nails with no open lesions or gross abnormalities, and in August 2012, he reported some pain in his bilateral feet.  The Veteran has continued receiving regular monitoring of his blood sugar levels and his diabetic neuropathy.
 
In June 2009, the Veteran was afforded a VA examination for diabetes mellitus.  The examiner reviewed the claims file and discussed history with the Veteran.  The Veteran reported that he was diagnosed with diabetes mellitus four or five years ago and that the disease has been stable with the use of oral medication.  He denied any history of hospitalization, surgery, pancreatic trauma, pancreatic neoplasm, or episodes of hypoglycemia reaction or ketoacidosis.  The examiner noted that the Veteran was restricted to a special diet but was not restricted in his ability to perform strenuous activity.  The examiner diagnosed Type II diabetes mellitus and found no evidence of visual impairment, kidney disease, neurologic disease, amputation, peripheral edema, or other diabetic conditions.
 
In February 2013, the Veteran was afforded an additional VA examination.  The examiner discussed the Veteran's history and noted that he was diagnosed with diabetes mellitus in 2005 and has had related problems with his extremities for the past one to two years.  The examiner noted that the Veteran has been prescribed an oral hypoglycemic agent and insulin injections and must follow a restricted diet, but he did not require a regulation of activities as part of the medical management of his diabetes mellitus.  The examiner found that the Veteran had no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months, had no unintentional weight loss or loss of strength.  He needed to visit his diabetic care provider less than twice a month.  The examiner diagnosed diabetes mellitus, diabetic peripheral neuropathy, diabetic nephropathy or renal dysfunction, erectile dysfunction, and hypertension.  The examiner also stated that the Veteran's diabetes mellitus did not impact his ability to work.
 
As is clear from a review of the evidence described above, the criteria for a 40 percent evaluation for diabetes mellitus from January 22, 2009 are not met.  Evidence of record shows that the Veteran requires medication and a restricted diet for control of his diabetes.  There is, however, no evidence that the Veteran's diabetes requires a regulation of activities.  The term "regulation of activities" means that the appellant must avoid strenuous occupational and recreational activities.  38 C.F.R. § 4.119.  As the regulation of activities is the only criterion differentiating between a 20 percent rating and a 40 percent rating, the Veteran's requirement of insulin and a restricted diet cannot be deemed to more nearly approximate the criteria for a 40 percent rating.  38 C.F.R. § 4.7.  In the absence of some restriction on activity, a 40 percent rating cannot be assigned.
 
In this respect the June 2009 and February 2013 VA examiners noted that the Veteran did not have any restrictions on his activity due to diabetes mellitus.  There is no other clinical record indicating that he is restricted in any activities due to diabetes mellitus, nor has he ever alleged that he is.  Therefore, since January 22, 2009 the Veteran's diabetes mellitus has been clinically demonstrated to be no more than 20 percent disabling.  Staged ratings are not warranted, and an increased rating is not warranted at an time during the appellate term.  See Fenderson, 12 Vet. App. at 126.
 
The Board notes that the Veteran has been granted service connection and separate evaluations for left and right lower extremity peripheral neuropathy, hypertension, erectile dysfunction, and diabetic nephropathy and renal dysfunction, all of which have been found to be secondary to diabetes mellitus.  The only issue currently on appeal, however, is that pertaining to the rating assigned for Type II diabetes mellitus.  Symptoms associated with those separately rated disorders are not part of the issue on appeal and will not be considered at this time except as are specifically allowed for pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). 
 
The Board has considered the application of 38 C.F.R. § 3.321(b)(1) (2012), for exceptional cases where schedular evaluations are found to be inadequate.  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.  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.  Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). 
 
Here, the rating criteria reasonably describe the Veteran's disability and his symptomatology.  The overall disability picture with respect to diabetes mellitus does not show any significant impairment beyond that contemplated by the 20 percent rating, the criteria for which match precisely with the Veteran's required treatment for management of this disease and its symptoms.  The Veteran has not required any hospitalization, nor has he been shown to have any additional functional or occupational impairment due to diabetes mellitus.  As such, the Veteran's disability picture is contemplated by the rating schedule and those criteria are adequate to address his symptoms and average impairment of earning capacity.  Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met.  As the disability picture is contemplated by the rating schedule, the assigned schedular ratings are, therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).
 
In sum, there is no basis for assignment of a rating in excess of 20 percent for Type II diabetes mellitus from January 22, 2009.  In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b).
 
 
ORDER
 
Entitlement to an evaluation in excess of 20 percent for Type II diabetes mellitus from January 22, 2009 is denied. 
 
 

____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs