Citation Nr: 1322564 Decision Date: 07/16/13 Archive Date: 07/24/13 DOCKET NO. 08-36 802A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent for diabetes mellitus, type II, with erectile dysfunction. 2. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for a heart condition, including as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1970, and from January 1972 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for diabetes mellitus, type II, with erectile dysfunction; and denied service connection for hypertension and a heart condition, both as secondary to diabetes mellitus. The Veteran appealed, including from the initial 20 percent evaluation for diabetes mellitus, type II, with erectile dysfunction. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of it since the effective date of service connection). The issues of service connection for hypertension and a heart condition are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's diabetes mellitus has required use of an oral hypoglycemic agent and restricted diet, without regulation of activities. 2. Erectile dysfunction has been associated with diabetes mellitus, but has not been associated with a penis deformity. CONCLUSIONS OF LAW 1. The criteria are not met for an initial evaluation higher than 20 percent for diabetes mellitus, type II. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10; 4.119, Diagnostic Code 7913 (2012). 2. The criteria are not met for a separate 20 percent evaluation for erectile dysfunction. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.115b, Diagnostic Code 7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the development of a claim for compensation or other benefits. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2012). In regard to the claim on appeal for higher initial evaluation for service-connected disability, the requirement of VCAA notice does not apply. As here, where a claim for service connection has been substantiated and an initial rating and effective date assigned, the filing of a Notice of Disagreement (NOD) with the RO's decision as to the assigned disability rating does not trigger additional 38 U.S.C.A. § 5103(a) notice. The claimant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to either of these "downstream elements." See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The RO has complied with the duty to assist the Veteran through obtaining VA and private outpatient treatment records, and arranging for VA Compensation and Pension examinations. See 38 C.F.R. § 4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition). The Veteran also provided copies of private treatment records and personal statements. He previously requested a Travel Board hearing, but cancelled it prior to the scheduled hearing date. There is no indication of any further available evidence or information which has not already been obtained. In sum, the record reflects that the facts pertinent to the claim being decided have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. "The record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Analysis 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 (West 2002 & Supp. 2012); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations 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. Generally, 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. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of his disability. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. As here, in the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - "staged" ratings. See Fenderson, at 125-26. Under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 10 percent rating for diabetes mellitus is warranted when the condition is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus when requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires insulin, restricted diet, and regulation of activities. A 60 percent rating 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. A maximum 100 percent rating 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. A note to the criteria provides that compensable complications of diabetes mellitus are to be evaluated separately, unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are to be considered part of the diabetic process under Diagnostic Code 7913. For purpose of applying Diagnostic Code 7913, medical evidence is required to show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). On VA examination of March 2008, the Veteran indicated having been first diagnosed with diabetes mellitus in 1992. Recently he had not had ketoacidosis or significant hypoglycemic reactions, or hospitalization for either problem. Average glucose readings at home in the mornings were 120. His private physician had instructed him as to a diet and he continued to follow the same diet plan. He had had no formal nutrition consults. His weight had been stable since the last examination. The Veteran did not describe any restriction of activities on account of diabetes. He did feel malaise on occasion. He was taking oral medication for diabetes, and saw his diabetic care provider every three months. He felt he had been losing some strength of his muscles, and felt tired a lot of the time. There were no neurological symptoms involving the extremities at that time. The Veteran had being experiencing erectile dysfunction over the previous two years, and stated he was not capable of an erection and had tried medication with no help. A physical examination was completed. The diagnosis was diabetes mellitus, type II, non-insulin dependent, controlled by two medications, with onset in 1992; and erectile dysfunction, more likely than not related to diabetes and hypertension, longstanding. Records of VA outpatient treatment include a September 2009 clinical record stating in part that the Veteran was educated on the need to exercise regularly and maintain and active lifestyle. Contemporaneous records indicate at times an assessment of diabetes mellitus, uncontrolled, or "poorly controlled." A September 2010 clinical record shows the Veteran felt he was doing well on his existing medication regimen, without adverse effects, and was going to a fitness center on a regular basis. Upon VA re-examination of October 2011, the Veteran indicated a history of diabetes mellitus, managed by restricted diet, and prescribed oral hypoglycemic agents. He alleged that his activities were regulated as part of medical management of diabetes mellitus, because he "[could not] do things now due to balance and dropping things from peripheral neuropathy." The Veteran visited his diabetes care provider less than two times per month. There were no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. There was no progressive unintentional weight loss, or progressive loss of strength attributable to diabetes mellitus. Diabetes peripheral neuropathy and erectile dysfunction as complications of diabetes mellitus were noted. There was noted a functional impact upon the ability to work, due to "dropping things [and] material handling from neuropathy and balance [and] cannot climb ladders safely. Could not return to job in the warehouse due to my health. Am now unemployable." The Veteran also underwent examination of the genitourinary system at that time. Although he was diagnosed with erectile dysfunction then and at a general VA medical examination the following month, his penis was noted to be normal. An increased rating for diabetes mellitus, type II is not warranted. Under Diagnostic Code 7913, the current assigned 20 percent evaluation reflects the use of insulin and restricted diet. The next higher evaluation of 40 percent (and for that matter, any higher evaluation) also requires regulation of activities. Since the effective date of service connection for diabetes mellitus, the evidence does not indicate regulation of activities directly due to diabetes mellitus. If anything, the Veteran's diabetic treatment providers have encouraged him to adopt an exercise regimen. While the October 2011 VA examination reflects limited physical activity due to peripheral neuropathy, this is a diabetic complication, distinct from the underlying condition. The Veteran has already been awarded separate disability compensation for his diabetic neuropathy of the upper and lower extremities. Diabetes mellitus does not result in regulation of activities, per the rating criteria. Consequently, there is no basis for an increased evaluation. The Board has considered whether a separate evaluation for erectile dysfunction should be granted. However, 38 C.F.R. § 4.115b, Diagnostic Code 7522 specifies that in order for erectile dysfunction to be compensated, it must associated with a deformity of the penis. The Veteran's penis has been noted not deformed on VA medical examinations. Apart from the VA rating schedule, the potential application of other provisions of Title 38 of the Code of Federal Regulations has also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. There is no basis to find that the Veteran's service-connected diabetes mellitus presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are thorough, and he does not manifest or describe symptomatology outside of those criteria. The rating criteria premised upon treatment modalities, regulation of activities, and frequency of more severe complications fairly encompasses the scope of diabetes mellitus. The Veteran's disorder does not present an exceptional disability picture as to render the schedular rating criteria inadequate. The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue. In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For these reasons, the Board is denying the claim for increased rating for diabetes mellitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER An initial evaluation higher than 20 percent for diabetes mellitus, type II is denied. REMAND A March 2008 VA examiner's opinion states that claimed hypertension is less likely than not related to diabetes because the two conditions were diagnosed contemporaneously. Hypertensive heart disease was also considered unrelated to diabetes mellitus. However, the opinion does not further address the crucial inquiry to the Veteran's secondary service connection claim of whether diabetes mellitus chronically aggravated either hypertension, or hypertensive heart disease over time. See 38 C.F.R. § 3.310(b) (2012). Accordingly, these claims are REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA cardiology examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner must state whether the Veteran presently has both hypertension and hypertensive heart disease; and if so, whether either of the diseases were caused by or aggravated by (permanently worsened) the service-connected diabetes mellitus, type II. In providing this determination, please consider the prior medical conclusions expressed from the March 2008 and April 2011 VA examinations. If an opinion cannot be rendered without resorting to pure speculation, please explain why this is not possible. 2. The RO/AMC should then review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claims on appeal, based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. These claims 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). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs