Citation Nr: 1325166	
Decision Date: 08/08/13    Archive Date: 08/13/13

DOCKET NO.  10-04 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to a rating in excess of 20 percent for Type-II diabetes mellitus.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel



INTRODUCTION

The Veteran served on active duty from August 1967 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.  

The Virtual VA claims file has been reviewed.  


FINDING OF FACT

Type-II diabetes mellitus is productive of the use of insulin and diet restriction, with regulation of activity.


CONCLUSION OF LAW

The criteria for a rating of 40 percent for Type II diabetes mellitus have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award.  Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in October 2008, to the Veteran.  This letter explained the evidence necessary to substantiate the Veteran's claim for an increased rating, as well as the legal criteria for entitlement to such benefits.  The letter also informed him of his and VA's respective duties for obtaining evidence.  The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice.  As such, there was no defect with respect to timing of the VCAA notice.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA also has a duty to assist a veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The claims file contains the Veteran's available service treatment records, reports of VA post-service treatment, and the Veteran's own statements in support of his claim.  The Veteran was afforded a VA examination responsive to the claim for an increased disability rating.  The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the increased rating claim on appeal.  The examination report contains all the findings needed to rate the Veteran's service-connected diabetes mellitus, including his history and clinical evaluation.  The Board finds that the opinion is adequate.  

The Veteran's appeal for a higher evaluation for diabetes mellitus is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination.  Proscelle, 2 Vet. App. at 632.  In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2008 VA examination, including no assertion by the Veteran of worsening since the last VA examination.  The Veteran here does not assert that his diabetes mellitus has worsened since the VA examination; he merely asserts entitlement to a higher disability evaluation.  The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that this disability worsened since the most recent VA examination.  As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination).  The Veteran has been afforded adequate examinations on the issue decided herein.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

Additionally, the Veteran has not alleged that the examination is inadequate to decide the claim being adjudicated herein, so the examination is presumed to have been adequate.  See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the VCAA duties to notify and assist have been met.

Legal Criteria for Evaluation

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   Here, the disability has not significantly changed and a uniform evaluation is warranted. 

Analysis for a Disability Evaluation

The Veteran is rated for his Type II diabetes mellitus pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913; he receives a 20 percent disability evaluation for the rating period on appeal.  

The Veteran was afforded a VA examination in connection with his claim in December 2008.  According to the report, the Veteran reported that he took an oral hypoglycemic agent and insulin to control his diabetes; he is also on a non-calculated diet.  He also reported that he was initially treated with an oral hypoglycemic agent and exercise program.  He denied experiencing ketoacidosis or hypoglycemic reactions; he also denied hospitalizations for ketoacidosis or hypoglycemic reactions.  He reported that his weight was stable.  The Veteran related that he sought diabetic care approximately every 2 to 3 months.  He also denied experiencing diabetic retinopathy and vascular complications, but reported experiencing hypertension, erectile dysfunction, and peripheral neuropathy.   Physical examination showed blood pressure of 132/70 and normal sinus rhythm.  Peripheral vasculature was 2/4+ and equal bilaterally for the lower extremities; deep tendon reflexes were 1/4+ for the lower extremities, but slightly diminished for the upper extremities.  There was no evidence of hypertensive or diabetic retinopathy.

VA treatment records dated November 2007 through December 2009 indicate that the Veteran is treated for his diabetes mellitus with an oral hypoglycemic and insulin, as reported.  Additionally, treatment records dated October 2008 indicate that the Veteran was advised as to managing his diabetes mellitus through consistency with meals, meal planning and exercise, recognition of possible hypoglycemic reactions, and regulation of activities.  A July 2009 treatment note indicates that the Veteran's diabetes mellitus is treated by insulin, oral medications, restricted diet, and regulation of activities.  

Pursuant to DC 7913, a 20 percent rating is assigned where insulin and a restricted diet, or an oral hypoglycemic agent and restricted diet are required.  A 40 percent rating requires insulin, restricted diet, and regulation of activities.  The next highest possible rating under this Code is 60 percent, 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 are not compensable if related separately.  See 38 C.F.R. § 4.119, Diagnostic Code 7913. For the following reasons, the Board finds that the symptoms more nearly approximate the criteria for a 40 percent disability evaluation. 

The above evidence reflects that the Veteran's Type II diabetes mellitus is managed by oral hypoglycemic agents, insulin, restricted diet, and regulation of his activities.  The Veteran sees diabetic care provider every 2 to 3 months.  The Veteran's VA treatment records do not show that he has experienced or been hospitalized for episodes of ketoacidosis or hypoglycemic reactions.  In addition, the appellant has not asserted that he has required hospitalization.  Given the evidence of insulin use, restricted diet, and regulation of activities, the Board finds that his symptoms more nearly approximate the criteria warranting a 40 percent rating throughout the appeal period.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  

The Veteran does have complications from diabetes mellitus that are separately evaluated.  In fact, the Veteran was diagnosed with peripheral neuropathy and erectile dysfunction, more likely than not associated with diabetes mellitus.  The RO granted service connection for peripheral neuropathy in a May 2004 rating decision, and assigned a 10 percent rating for each extremity.  The Veteran was also granted service connection for erectile dysfunction and assigned a separate, noncompensable evaluation for this disability.  These separate evaluations are not at issue before the Board at this time.  Moreover, the Board cannot use the problems with these separate disabilities to increase the evaluation of the Veteran's diabetes mellitus, as the Rating Schedule generally prohibits pyramiding, i.e., evaluating the same disability under different diagnostic codes, 38 C.F.R. § 4.14, and the Court has held that pyramiding is disfavored "unless the regulation expressly provides otherwise," Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010).  As such, the Board does not find that the medical evidence supports a higher schedular rating.

Regarding the Veteran's hypertension, the Board notes that a March 2003 VA examiner found that it was unrelated to the Veteran's diabetes mellitus; the VA examiner noted that there was no renal involvement from the Veteran's diabetes mellitus. 

One function of the Board is to consider the lay evidence and pleadings.  However, other than that recorded during medical evaluations, the record is lacking in substantive pleadings from the Veteran or the representative.  To the extent that he has entered pleading to the effect that he has diabetes, takes medication and has been informed to regulate activities, such is confirmed in the record and is credible.  The Board is fully aware that the appellant is competent to report his symptoms, and that he has submitted statements as to his symptoms.  Under the circumstances, the medical evidence is more probative than any implied pleadings or lay evidence to the effect that an evaluation in excess of 40 percent should be assigned.

In reaching this determination, the Board notes that the evidence addressing regulation of activities is weak.  However, the AOJ did not seek clarification and the Board shall base the decision on the evidence of record. 

Extraschedular Considerations

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms of the Veteran's degenerative joint disease of the right ankle is fully contemplated by the applicable rating criteria.  As shown above, the criteria include symptoms of restricted diet, regulation of activities, and the use of insulin and oral hypoglycemic, each of which were addressed in the VA examination and treatment records and which provided the basis for the disability rating.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required.  In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards.  The VA examiner did not indicate that the Veteran lost any time from work due to his diabetes mellitus.  Therefore, referral for consideration of an extraschedular rating for the Veteran's diabetes mellitus is not warranted.  38 C.F.R. § 3.321(b)(1).

In the absence of exceptional factors associated with diabetes mellitus, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1)  are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227   (1995). 


ORDER

A rating of 40 percent for Type II diabetes mellitus is granted, subject to controlling regulations governing the payment of monetary awards.




____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs