Citation Nr: 1322830 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 06-07 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a sciatica disability. 3. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II. 4. Entitlement to service connection for Bell's palsy, to include as secondary to herbicide exposure. 5. Entitlement to service connection for residuals of a stroke, to include as secondary to herbicides or Bell's palsy. 6. Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1967, including service in the Republic of Vietnam from July 1966 to March 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2005, November 2005, and January 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issues were remanded for further development by the Board in August 2011 to afford the Veteran with VA examinations and nexus opinions related to his back, sciatica, Bell's palsy, residuals of a stroke, heart disability, and to determine the current level of disability for the Veteran's diabetes mellitus. The issues were remanded again in January 2013 to obtain and associate with the claims file any outstanding Social Security Administration records. The Veteran was afforded VA examinations in February 2012. The examiners provided the requested opinions, the Social Security Administration records were obtained, and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the August 2011 and January 2013 Board decisions, the issue of entitlement to service connection for a left ankle disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Additionally, the issue of entitlement to service connection for a skin disability has been raised by the record, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a back disability and sciatica 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 been manifested by the need for medication and a restricted diet, but does not require regulation of activities. 2. The Veteran's peripheral neuropathy of the right lower extremity results in neuritis analogous to no more than mild incomplete paralysis of the sciatic nerve. 3. The Veteran's peripheral neuropathy of the left lower extremity results in neuritis analogous to no more than mild incomplete paralysis of the sciatic nerve. 4. Prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the issue of service connection for Bell's palsy. 5. Prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the issue of service connection for residuals of a stroke. 6. Prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal with respect to the issue of service connection for a heart disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for an evaluation in excess of 10 percent evaluation for right-sided neuritis due to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8620 (2012). 3. The criteria for an evaluation in excess of 10 percent evaluation for left-sided neuritis due to diabetes mellitus have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8620 (2012). 4. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to service connection for Bell's Palsy have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 5. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to service connection for residuals of a stroke have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 6. The criteria for withdrawal of a substantive appeal by the Veteran as to the issue of entitlement to service connection for a heart disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The appeal for a higher initial rating for diabetes mellitus arises from a disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed regarding that issue. The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, private treatment records, VA examination reports, VA treatment records, Social Security Administration records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded a VA examination in April 2006 and February 2012. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded and the examination reports set forth detailed examination findings. Thus, the examination reports are adequate to decide the claim of higher initial rating. Thus, further examination is not necessary regarding that issue. Higher Initial Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of 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. In any claim for a higher rating, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected diabetes mellitus has been rated at 20 percent by the RO under the provisions of Diagnostic Code 7913. Under this regulatory provision: Diabetes mellitus requiring 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 warrants a 100 percent disability rating; 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 warrants a 60 percent disability rating; Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent disability rating; Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, warrants a 20 percent disability rating; Diabetes mellitus manageable by restricted diet only warrants a 10 percent disability rating. 38 C.F.R. § 4.120, Diagnostic Code 7913. As addressed in the criteria for the Veteran's current 20 percent disability rating, the Veteran's diabetes manifests with insulin use or oral hypoglycemic and a restricted diet. To receive a higher disability rating, the evidence must show regulation of activities. The Veteran was afforded a VA examination in April 2006. The Veteran denied ketoacidosis or hypoglycemic reactions, or hospitalizations for ketoacidosis or hypoglycemic reactions. The Veteran was aware of and compliant with a diabetic diet, but denied any need for activity restrictions on account of the diabetes or secondary to hypoglycemic reaction precipitating factors. A June 2006 private treatment record showed no episodes of hypoglycemia. He was taking Glucophage and was considering beginning insulin. The Veteran was afforded another VA examination in December 2006. The examiner noted the Veteran's diabetes was under fair to poor control. A December 2007 report from a private physician shows that the Veteran takes Lantus insulin, Metformin, and is on an ADA diet. The doctor does not note any restriction in activities. In September 2008, the Veteran submitted a statement noting that by doctor's orders he cannot lift over 10 to 15 pounds, walk or jog long distances, stand for a prolonged period, or perform heavy exertion. This statement is signed by the Veteran and not a doctor. It is also unclear whether any such restrictions would be due to his diabetes or his numerous orthopedic problems. A November 2009 VA dietetics nutrition consult treatment record states that the Veteran's activities are restricted due to his back pain and his knee pain. Despite the pain, the Veteran worked out at a gym to attempt to lose 50 pounds. During an October 2010 VA treatment session, the examiner noted that he had no hypoglycemic episodes. The Veteran's activity was limited secondary to his knee pain. The examiner diagnosed diabetes mellitus uncontrolled secondary to non-compliance with medication. He was to restart Lantus insulin. The Veteran was afforded a final VA examination in February 2012. At that time, the examiner noted that the Veteran was treated with prescribed oral hypoglycemic agents and prescribed insulin injection of one per day. He specifically noted that the Veteran does not require regulation of activities as part of the medical management of his diabetes mellitus. The Veteran has had no hospitalizations due to, or episodes of, ketoacidosis or hypoglycemia. The Board acknowledges the Veteran's assertions that he has restricted activities; however the evidence shows that these restricted activities are due to his orthopedic problems. Additionally, they did not stop him from working out at a gym to lose weight in relation to his diabetic nutrition. The VA examiners in April 2006 and February 2012 both specifically noted no regulation of activity. The remainder of the medical treatment records supports these findings. The Board also notes that the Veteran has been service connected for peripheral neuropathy of the lower extremities, rated at 10 percent each. The Veteran's peripheral neuropathy is a symptom of his diabetes mellitus. Therefore, a higher initial rating for that separate manifestation of diabetes mellitus must also be considered in a claim of increased rating for diabetes mellitus. The Veteran's peripheral neuropathy is rated under Diagnostic Code 8620 for neuritis of the sciatic nerve. Under that regulation, mild neuritis with incomplete paralysis warrants a 10 percent rating, moderate neuritis with incomplete paralysis warrants a 20 percent rating, moderately severe neuritis with incomplete paralysis warrants a 40 percent rating and severe neuritis with incomplete paralysis with marked muscular atrophy warrants a 60 percent rating. Complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost warrants an 80 percent disability rating. 38 C.F.R. § 4.124a, Diagnostic Code 8620. In April 2006, the Veteran noted no symptoms of the left lower extremity. He did note right lower extremity pain, numbness, and weakness; however the examiner related these symptoms to the Veteran's lumbar disc disease. In December 2006, the Veteran noted tingling sensations in the bilateral feet. On a February 2012 central nervous system examination, the examiner diagnosed mild peripheral neuropathy. The examiner then noted moderate paresthesias and/or dysethesias and moderate numbness in the lower extremities. His strength was noted as 4/5 in the knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion ranges. The Veteran's deep tendon reflexes were normal in the left knee and ankle and decreased in the right knee and ankle. Light touch testing was decreased in the ankle, lower leg, feet, and toes. Position sense was normal, vibration sensation was decreased, and cold sensation was normal. The examiner found no muscle atrophy. Based on these findings, the examiner specifically diagnosed mild incomplete paralysis of the sciatic nerve. As the record indicates generally mild symptoms of peripheral neuropathy and a specific finding of mild incomplete paralysis of the sciatic nerve, the Board finds that the preponderance of the evidence does not show symptoms meeting the criteria for a disability rating in excess of 10 percent for lower extremity peripheral neuropathy. Finally, the Board notes a diagnosis of erectile dysfunction related to the Veteran's diabetes mellitus. In this regard, he is currently receiving special monthly compensation under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. He is not entitled to additional compensation for erectile dysfunction. Based on the evidence of record, and after resolving all doubt in the Veteran's favor, the Board finds that the manifestations of the Veteran's diabetes mellitus do not more nearly approximate the criteria for a 40 percent disability rating. As such, the Board finds that the preponderance of the evidence is against the claim. Extraschedular Consideration The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1) (2011). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's diabetes mellitus is manifested by use of insulin and restricted diet. These manifestations are contemplated in the applicable rating criteria. As such, the Board finds that the Veteran has not described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation. Rather, his description of diabetes symptomatology is consistent with the degree of disability addressed by the rating criteria. Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. The Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Here, the Veteran has already been granted individual unemployability in a separate rating decision. As such, the issue is not addressed in this decision. Withdrawal The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.202, 20.204(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(c). In a May 2013 written statement, the Veteran's representative indicated that the Veteran wished to withdraw his claims for service connection involving Bell's Palsy, residuals of a stroke, and a heart disability that were pending before the Department of Veterans Affairs and the Board of Veterans' Appeals. As such, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal regarding these issues, and the issues of service connection for Bell's Palsy, residuals of a stroke, and a heart disability are dismissed. ORDER A higher rating for diabetes mellitus is denied. The appeal for entitlement to service connection for Bell's Palsy is dismissed. The appeal for entitlement to service connection for residuals of a stroke is dismissed. The appeal for entitlement to service connection for a heart disability is dismissed. REMAND The Board will address the Veteran's back disability and sciatica claims together as they manifest from the same etiology. In February 2012, the Veteran was afforded a VA examination. The examiner opined that the lumbar spine condition with likely resulting radiculopathy (Sciatica) was less likely than not incurred in or caused by the claimed in-service injury and or event. He based his opinion on the lack of service treatment records documenting a back condition and the lack of immediate post-military medical records documenting a back disability. The Board notes that the Veteran has asserted that within a few years of service he was treated with traction for a low back disability. Additionally, he has complained of some back pain since service. Although the back pain is not documented, the Veteran's statements of pain and treatment post-service are sufficient to provide the basis for an opinion. Once the Secretary determines that an examination or opinion is required to decide a claim, VA is required to ensure that such an examination or opinion is adequate; if it is not "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2; Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (stating that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"); see also Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (concluding that inadequate medical evaluation frustrates judicial review). Therefore, an addendum opinion is required that considers the Veteran's lay assertions of treatment post-service and pain since service. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service back symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After associating all pertinent outstanding records with the claims file, return the claims file to the February 2012 VA examiner. If the examiner is not available, then obtain an addendum opinion from a qualified examiner. The examiner should review the claims file and address the following question: Is it at least as likely as not that the Veteran's back disability had its onset during or was causally related to service? The examiner should address the Veteran's competent statements regarding his jumping from airplanes, his lay complaints of pain in service, and his apparent treatment with traction within a few years of separation from service. All findings and conclusions should be set forth in a legible report. 3. Then, readjudicate the appeal regarding both the back and the sciatica claims. If the benefits sought on appeal are not granted, issue the Veteran and his representative a supplemental statement of the case and provide the Veteran an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs