Citation Nr: 1322909 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-10 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to an initial evaluation higher than 20 percent for diabetes mellitus, type II. 2. Entitlement to service connection for bilateral feet peripheral neuropathy as secondary to 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 August 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In May 2009, the RO granted service connection for diabetes mellitus, type II, effective from March 23, 2008, and assigned a 20 percent disability rating. In December 2009, the RO denied service connection for bilateral feet peripheral neuropathy secondary to diabetes mellitus. Through December 2012 correspondence, the Veteran's representative raised the issue of entitlement to service connection for an eye condition, secondary to diabetes mellitus, type II. This claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's diabetes mellitus has required use of insulin and restricted diet, without regulation of activities. 2. There is recent indication of development of bilateral lower extremity peripheral neuropathy secondary to diabetes mellitus. 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. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for bilateral feet peripheral neuropathy, secondary to diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (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). As indicated below the Board is granting the benefit sought on appeal of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). In regard to the claim on appeal for higher initial evaluation for service-connected disability, the requirement of VCAA notice does not apply. 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). This is the case here, in that the claim for service connection for diabetes mellitus has been substantiated, and no further notice addressing the downstream disability rating requirement is necessary. 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). In furtherance of this claim, 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. Recent VA treatment records have been associated with the Veteran's "Virtual VA" electronic claims file. In September 2012, the Veteran's representative stated that local jurisdiction was waived over such evidence. Therefore, remand for the issuance of a supplemental statement of the case is not required. Background and Analysis Increased Rating for Diabetes Mellitus 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). The Court in Camacho further underscored that regulation of activities, within the context of the rating criteria, consists of the avoidance of strenuous occupational and recreational activities (as defined within the criteria for a 100 percent rating itself). Id. at 363. Records of private treatment show ongoing monitoring of the condition of the Veteran's diabetes mellitus, including February 2009 clinical note indicating type II diabetes with significant improvement in control. The Veteran was in a special program at a university medical clinic and was restricting calories, as well as exercising about an hour each day. The Veteran underwent VA examination for diabetes mellitus in April 2009, during which it was indicated that he utilized oral medication and injected insulin for his condition. He denied a history of hospitalization or surgery, of episodes of hypoglycemia reaction or ketoacidosis. The Veteran had been instructed to follow a restricted or special diet. He was not considered restricted in ability to perform strenuous activities. The July 2009 correspondence from Dr. F.S.K., private endocrinologist, indicates that the Veteran's control over diabetes mellitus had improved considerably over the previous six months, and he had been maintained on 2000 calories a day with 50 grams of fats. He was insulin dependent and was on oral agents. He walked about five miles a day as well as followed his diet diligently. In the last few months, he had lost over 60 pounds, and his diabetic control had improved dramatically. The February 2010 correspondence from Dr. C.B., private physician, indicates that the Veteran's diabetes mellitus was now treated principally with diet and exercise. This classical therapy required him to follow a highly prescribed and restricted diet, which he had devoted himself to learning and executing over the past year. He had been very successful in this diet and continued to follow it. In addition, he pursued a rigorous program of physical activity daily, again with great success. It was expected that he would need to continue this approach indefinitely. The May 2010 correspondence from Dr. F.S.K. indicates that it had been brought to his attention that the Veteran had some work restrictions. These included not being able to push or pull hoses through a building, and difficulty using his hands, with limited sensation, due to peripheral neuropathy, secondary to longstanding diabetes. The Veteran was also at high risk for falls, especially on ladders due to his neuropathy. In addition, his neuropathy made it difficult for him to crawl through small buildings, and anticipate and fell any small objects such as nails that might result in skin breakage, and therefore, infection of his skin and subcutaneous tissue, such as cellulitis. It was therefore the physician's recommendation that the Veteran be put on work restrictions that would accommodate his underlying medical illness, due to his neuropathy and longstanding diabetes. On VA re-examination of August 2010, the Veteran indicated taking insulin by injection and other prescribed medication. There was no history of hypoglycemic reactions or ketoacidosis. There were no hospitalizations for diabetes. There was no weight loss or weigh gain in the previous year. A diabetic diet was prescribed. There were no activity or work restrictions prescribed (to the knowledge of the VA examiner). The frequency of diabetic care visits was every four months. The course of diabetes was suboptimal. Based on review of the foregoing, 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. Per the rating criteria, 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, and this has assisted in controlling the underlying diabetes mellitus condition. Whereas the May 2010 correspondence from Dr. F.S.K. denotes several work restrictions and limitations attributable to peripheral neuropathy, this is a diabetic complication, distinct from the underlying condition. The Veteran is being awarded separate disability compensation for his diabetic neuropathy of the lower extremities pursuant to the instant Board decision, as indicated below. However, diabetes mellitus itself does not result in regulation of activities, per the rating criteria. To the contrary, the evidence of record shows that he is involved in a rigorous program of physical activity daily. Consequently, there is no basis for an increased evaluation under provisions of the VA rating schedule. 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. In this case, there initially 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. To the extent the Veteran experiences the condition of bilateral lower extremities secondary to diabetes mellitus, as indicated below, this is the basis for an award of separate compensation. Thus, the Board cannot conclude that the Veteran's condition is consistent with 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. This determination takes into full account the potential availability of "staged rating" based upon incremental increases in severity of service-connected disability during the pendency of the claim under review. The preponderance of the evidence is against the claim, and under these circumstances, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for Bilateral Feet Peripheral Neuropathy Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). With regard to secondary service connection, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). Pursuant to the Veteran's April 2009 VA Compensation and Pension examination, the diagnosis was in part, bilateral lower extremity neuropathy. The VA examiner opined that this was not a complication of diabetes mellitus, inasmuch as the Veteran's chronic back condition was likely contributory to his neurological symptoms. It was observed that the Veteran had shown asymmetry of the monofilament examination, whereas typically with diabetic neuropathy there was symmetry. The August 2010 VA examination report reflects the VA examiner's opinion that the Veteran's peripheral neuropathy of the bilateral lower extremities was less likely as not caused by or aggravated by diabetes mellitus. The stated rationale was that there was a Michigan neuropathy screening score 2.5 or less and no evidence of other diabetic microvascular disease such as retinopathy or nephropathy, which tended to preclude symptoms due to diabetes mellitus. Thereafter, VA outpatient records from December 2011 reflect that the Veteran had very recently developed a throbbing, "pins and needles" sensation in the bilateral feet. An April 2012 clinical records denotes an assessment of diabetic neuropathy of the bilateral feet. When seen in July 2012, he described an intermittent history of jerking and shaking episodes, with dull aching pain in both lower extremities, and shooting pain down the bilateral legs. The Veteran's history of sciatic neuropathy related to back pain was objectively noted; however, a more thorough evaluation to include EMG study was deemed necessary into whether the Veteran now had a peripheral neuropathy condition. There is no further indication from the available records (in the Veteran's "Virtual VA" electronic claims file) whether the requested EMG was conducted, but there were subsequently medical notations of diabetic neuropathy in his health assessments. At this stage, and with due consideration of VA's principle of resolution of reasonable doubt in the claimant's favor on material issues of concern, the Board finds sufficient basis in the record to conclude that the Veteran manifests diabetic retinopathy. See 38 C.F.R. § 4.3. While the initial medical assessments were that the Veteran's bilateral lower extremity pain was limited to sciatic neuropathy from a nonservice-connected back disorder, the more recent findings of December 2011 onwards correspond to a different category altogether of neurological symptomatology, accompanied by what VA treatment providers began to characterize as actual diabetic neuropathy. Accordingly, service connection for bilateral lower extremity peripheral neuropathy is deemed warranted. ORDER An initial evaluation higher than 20 percent for diabetes mellitus, type II, is denied. Service connection for bilateral feet peripheral neuropathy, secondary to diabetes mellitus, type II, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs