Citation Nr: 1323465 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-18 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus with hypertension and ventricular hypertrophy. 2. Whether a separate rating is warranted for left ventricular hypertrophy associated with diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from January 1978 to March 1982, August 1982 to April 1987, and May 1988 to July 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Los Angeles, California that denied entitlement to an evaluation in excess of 20 percent disabling for diabetes mellitus. In May 2009, July 2010 and September 2012, the Board remanded the Veteran's claims for further development. Such development has been completed and associated with the claims file, and these matters are returned to the Board for further review. In a rating decision of July 2011 the RO expanded the issue to include hypertension and left ventricular hypertrophy as part of the issue; however, no separate rating was assigned for either disability. The Board finds that the evidence of record is sufficient to decide the issue of the disability rating of diabetes mellitus and most of its related complication except for the left ventricular hypertrophy. Accordingly, the Board has recharacterized the issues on appeal as shown on the title page in order to decide the issues which are ready for appellate review and remand the issue of whether a separate rating is warranted for left ventricular hypertrophy for further development. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional records relevant to the present claim contained therein. The issue of whether a separate rating is warranted for ventricular hypertrophy associated with diabetes is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent and probative evidence of record indicates that treatment of the Veteran's diabetes mellitus, type II, requires the use of insulin and diet restriction, but not restriction of activities. 2. Diabetic retinopathy is manifested by corrected and uncorrected visual acuity of 20/40 bilaterally. 3. Erectile dysfunction is not manifested by deformity of the penis. 4. Hypertension is not shown to be manifested by diastolic readings predominantly 100 or more or systolic pressure is predominantly 160 or more. CONCLUSION OF LAW The criteria for a disability rating in excess of 20 percent for the service-connected diabetes mellitus, type II, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist a claimant in the development of his claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in September 2005 and notice with respect to the effective-date element of the claim by a letter mailed in March 2006, prior to the initial adjudication of his claim. While the initial notice letter predated the rating decision, notice as to the effective date element was not provided prior to the initial adjudication of the claim. However, the claim was readjudicated in a statement of the case of April 2006 and in supplemental statements of the case of June 2006, April 2010, July 2011and May 2013. Accordingly, any prejudice as to the timing was cured. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. The Veteran was afforded VA examinations in August 2005, December 2009, January 2010, August 2010, March 2012, October 2012 and February 2013 for his service-connected diabetes mellitus and related disabilities. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports, as a whole, contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports, as a whole, are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that while the August 2010 VA examination was found to inadequate to properly assess the severity of the diabetes mellitus, a new examination was ordered in the Board remand of September 2012. Except for the examination discussed in the remand portion of this decision, the VA examinations conducted as a result of the Board's September 2012 remand are found to be adequate for appellate review. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. Accordingly, the Board will proceed to a decision. Legal Criteria and analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). 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. See 38 C.F.R. § 4.7 (2012). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2012); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." Diabetes mellitus is rated under Diagnostic Code 7913 of the Rating Schedule. See 38 C.F.R. § 4.119. 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, is assigned 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, is assigned a 60 percent disability rating. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating Diabetes mellitus requiring insulin and restricted diet, or use of an oral hypoglycemic agent and a restricted diet is assigned a 20 percent disability rating. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the Board has considered whether another rating code is "more appropriate" than the one used by the RO, Diagnostic Code 7913. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Diagnostic Code 7913 is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (diabetes mellitus) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 7913, with reference to other diagnostic codes as appropriate as required by the diagnostic criteria set forth therein. In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). The Board will therefore review the evidence to determine whether any additional separate disability ratings may be assigned. This requires analysis of the severity of any identified complications of diabetes in order to ascertain whether such complications are compensable. The Veteran contends that he is entitled to a disability rating in excess of 20 percent for diabetes mellitus. He also contends that his service-connected diabetes mellitus specifically includes erectile dysfunction, bilateral cataracts, bilateral retinopathy and hypertension, and that he should be assigned separate ratings for each of these associated disabilities. In a rating decision of July 2011, the RO expanded the issue to include retinopathy and ventricular hypertrophy. The RO found that neither disability was compensable and did not assign separate ratings. An August 2005 VA examination noted impotence likely related to diabetes mellitus. A December 2009 VA examination noted erectile dysfunction related to diabetes mellitus. A March 2012 VA examination noted erectile dysfunction due to diabetes associated microvascular disease. It was noted that the genitalia were not examined at the Veteran's request, but that no deformity was reported. Erectile dysfunction is rated by analogy, to "penis, deformity, with loss of erectile power", Diagnostic Code 7522. See 38 C.F.R. § 4.20 (2012). The rating schedule provides a 20 percent rating for deformity of the penis with loss of erectile power. This is a conjunctive set of criteria; both must be present to warrant compensation at the sole authorized level, 20 percent. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. In this case, the medical evidence does not indicate that the Veteran has a penile deformity, and he does not contend otherwise. Where the criteria for a compensable rating under a diagnostic code are not met, as here, a noncompensable rating is awarded. See 38 C.F.R. § 3.31 (2012). Consequently, there is no basis for a separate rating for erectile dysfunction under the rating schedule. With respect to neurological impairment, the Board notes that at an August 2005 VA examination the Veteran reported a history of numbness and tingling in the feet and hands. No objective signs were found during the examination but the examiner noted that the reported symptoms are suggestive of peripheral neuropathy likely related to diabetes mellitus. At the December 2009 and August 2010 VA examinations, the Veteran denied any symptoms of peripheral vascular disease of the lower extremities and neurovascular disease. However, the August 2010 VA examination also noted that the Veteran complained of symptoms of peripheral neuropathy. The August 2010 VA examiner noted there was no evidence of neurologic disease. While symptoms of numbness and tingling were reported in August 2005, at no time has a diagnosis of peripheral neuropathy been rendered by a medical professional. In fact, physical examinations have been consistently normal. In light of the foregoing, the Board concludes that a separate rating is not warranted for neurological manifestations. The medical evidence of record also indicates diagnoses of hypertension. At the December 2009 VA examination a diagnosis of hypertension was noted. Blood pressure readings were 124/72, 110/73, and 124/81. The examiner opined that hypertension was not a complication of diabetes mellitus as its diagnosis pre-existed the diabetes. At an August 2010 examination hypertension was noted as a complication of diabetes mellitus. Blood pressure readings were 124/81, 107/76 and 110/79. At a March 2012 VA examination it was noted that hypertension is controlled by medication. Blood pressure readings were 130/84, 126/82, and 120/80. Under Diagnostic Code 7101, a 10 percent rating is warranted for hypertension when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Although the Veteran's hypertension is treated by medication, the Veteran's medical history does not show diastolic readings predominantly 100 or more. Where the criteria for a compensable rating under a diagnostic code are not met, as here, a noncompensable rating is awarded. See 38 C.F.R. § 4.31 (2012). Consequently, there is no basis for payment of compensation for hypertension under the rating schedule. The medical evidence of record further indicates the Veteran has been diagnosed with diabetic retinopathy. In this regard, it is noted that the diagnostic criteria pertinent to diseases of the eye (38 C.F.R. § 4.84a, Diagnostic Codes 6000 through 6037) do not specifically set forth rating criteria pertinent to retinopathy. The severity of retinopathy can be ascertained, however, as analogous to impairment of central visual acuity (Diagnostic Codes 6061 through 6066). Under these rating criteria, a compensable disability rating can be assigned when corrected vision in one eye is no better than 20/50, and corrected vision in the other eye is no better than 20/40 (Diagnostic Code 6066). When corrected vision in each eye is no better than 20/40, compensation is not appropriate (Diagnostic Code 6066). In the present case, a February 2013 VA examination noted diagnoses cataracts and diabetic retinopathy. Examination revealed findings of 20/40 corrected and uncorrected vision bilaterally. Thus, assignment of a compensable rating based on visual acuity is not warranted here. As noted above, the RO has included diabetic retinopathy as part of the service connected diabetes mellitus. Cataracts, on the other hand, have not been found to be related to diabetes. Regardless, as noted, the Veteran would not be entitled to a compensable evaluation for his visual disability and a separate rating is not warranted. To the extent that the Veteran himself contends that he has various disabilities and that such disabilities are related to the service-connected diabetes mellitus, the Board observes that 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board notes that the Veteran, while entirely competent to report his symptoms both current and past (including excessive sweating and fatigue), has presented no probative clinical evidence that he currently has complications from his diabetes including hypertension, peripheral neuropathy, erectile dysfunction, and diabetic retinopathy which are of sufficient severity to warrant separate compensable disability ratings. Even taking his assertions into account, the evidence of record does not show neurological impairment, hypertension, erectile dysfunction, and diabetic retinopathy of such severity to warrant compensable evaluations. The Board must now ascertain whether a disability rating greater than 20 percent can be awarded for diabetes by applying the schedular criteria found in Diagnostic Code 7319. As has been discussed in the law and regulations section above, in order for a 40 percent disability rating to be awarded, the service-connected diabetes mellitus must require insulin, a restricted diet, and regulation of activities. These criteria are conjunctive; all three elements must be met. See Melson and Johnson, both supra. The evidence of record indicates that the Veteran requires the use of insulin on a daily basis as well as oral medication for treatment of his diabetes mellitus. See, e.g., the August 2005, December 2009, August 2010 VA examination report. The evidence of record also indicates that the Veteran has been placed on a restrictive diet to control his diabetes mellitus. See, e.g., a VA treatment record dated in February 2004. With respect to restriction of activity, VA outpatient treatment records of February 2004, August 2009, November 2009 and March 2010 show the Veteran was not restricted in his ability to perform strenuous activities as a result of his diabetes mellitus. Quite the contrary, he was advised, as part of treatment, to exercise. Additionally, a June 2005 VA treatment record indicates that the Veteran was advised to lose weight. The Board acknowledges that the August 2010 VA examination notes that the Veteran is restricted in his ability to perform strenuous activity in that he is unable to play sports or walk long distances due to fatigue and hypoglycemic reactions. While this is noted, nowhere does the record reflect that a treating physician has advised the Veteran not to engage in strenuous activities or has prescribed the regulation of activities. Rather, he has been advised to exercise. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Board reads the entry in the August 2010 VA examination to be the Veteran's report of his inability to engage in sports rather than a physician ordered activity restriction. Indeed, when describing the current treatment for diabetes, the examiner noted insulin and oral medication. Restriction of activity was not part of the treatment. Therefore, the Board finds that there is no competent and probative evidence to the contrary. The notation in the August 2010 VA examination is no more than a self-report while obtaining the Veteran's medical history and this does not amount to medical evidence of a prescribed restriction of activities. The record as a whole, indicates that exercise has actually been prescribed and advised as part of treatment. Considering the evidence as delineated above, the Board finds that all of the criteria for the assignment of a 40 percent disability rating are not met; and the higher rating may not be awarded. The Board further notes in passing that there is not even a hint of any pathology attributable to diabetes mellitus which would call for the assignment of even higher disability ratings (i.e. 60 percent and 100 percent). The Board therefore finds that no basis exists for the assignment of a rating in excess of 20 percent for diabetes under Diagnostic Code 7913. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's diabetes mellitus, type II. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted 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 period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b)(1) (2012). 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 first 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 level of disability and symptomatology and is found to be inadequate, the Board must then 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, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has not required hospitalization as a result of his diabetes mellitus. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. REMAND In a September 2012 Remand, the RO was instructed to afford the Veteran a cardiovascular examination to evaluate the current nature and severity of the left ventricular hypertrophy. The Board noted that while the August 2010 VA examination had diagnosed ventricular hypertrophy as a complication of diabetes mellitus, the examination did not provide sufficient information on which to rate the disability as METs (metabolic equivalents) had not been obtained. The Veteran was afforded a cardiovascular examination in October 2012. The Veteran was not examined in person but rather, the examination consisted of a phone interview and a review of the claim file. The examiner noted that there had been no prior diagnoses of a heart condition. However, as noted above, the August 2010 VA examination rendered a diagnosis of left ventricular hypertrophy, and the Board is concerned that this finding was not reconciled with the October 2012 VA examiner's conclusion. Accordingly, the Board finds the October 2012 examination to be inadequate and a new examination is needed to properly assess the severity of the diagnosed left ventricular hypertrophy. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who interviewed the Veteran in October 2012. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner should be asked to reconcile the finding that the Veteran has never been diagnosed with a heart condition with the previous examination report diagnosing left ventricular hypertrophy. The examiner should also specifically address whether another interview or an in-person physical examination of the Veteran, to include METs or other diagnostic testing, is necessary to determine the presence of left ventricular hypertrophy. If deemed necessary, a physical examination and appropriate diagnostic testing should be conducted. All results of any such studies, tests, or evaluations must be included in the examination report. The examiner should offer an opinion as to whether it is at least as likely as not (meaning likelihood of at least 50%) that any heart condition found, to include left ventricular hypertrophy, was caused or has been permanently aggravated by a service-connected disability. 2. Then, readjudicate the issue of whether a separate compensable evaluation is warranted for left ventricular hypertrophy as a complication of diabetes. If the issue remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs