Citation Nr: 1325314 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-36 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to December 1967. This matter is on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This appeal was remanded by the Board in March 2012 for further development. FINDING OF FACT The Veteran's diabetes mellitus is characterized by the need for insulin and restricted diet, but prescribed restriction of activities has not been shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify was satisfied by an October 2008 letter that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Next, VA has a duty to assist a veteran in the development of the claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service medical records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility and his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in November 2008. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA examination obtained in this case is adequate because it is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Additionally, the Veteran was scheduled for a new VA examination in March 2012 but did not appear for the scheduled examination. In the context of a claim for an increased rating, the claim should be denied if the Veteran fails to appear. 38 C.F.R. § 3.655(b) (2012). The Board is satisfied that VA's duty to assist has been met. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). Finally, it is noted that this appeal was remanded by the Board in March 2012 for further development. Specifically, the Board instructed the RO to obtain the Veteran's most recent VA treatment records, and to afford him a new VA examination in order to assess the current severity of his diabetes mellitus. The Board is now satisfied there was substantial compliance with that Remand. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the RO obtained the Veteran's VA treatment records and schedule him for a VA examination. While the Veteran failed to appear for this VA examination, the duty to assist has nonetheless been satisfied. The duty to assist is not a one-way street. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Moreover, after the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in October 2012. Accordingly, the Board finds substantial compliance with the Remand directives. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, the reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings is permitted. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently rated at 20 percent for diabetes mellitus. A 20 percent rating is warranted when the evidence shows the need for insulin and restricted diet, or the use of an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted where the evidence shows the need for insulin, restricted diet, and regulation of activities. Regulation of activities means that the Veteran has been medically advised to avoid strenuous occupation and recreational activities. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Compensable complications of diabetes are to rated separately unless they are part of the criteria used to support a 100 percent rating. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2012). The Veteran has been service-connected for various complications of his diabetes, to include coronary artery disease, neurological abnormalities in the extremities, renal insufficiency, peripheral arterial disease, and erectile dysfunction. However, the ratings assigned for the secondary complications were not appealed when the ratings were assigned. Therefore, the propriety of the ratings for the various complications is not for the Board's consideration at this time. Based on the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for diabetes mellitus, as regulation of activities has not been prescribed. While some physicians may have indicated concern that the Veteran not over-exert himself due to his many physical disabilities, the term regulation of activities is not merely the fact that the Veteran's diabetes impacts his daily functioning. Rather the diagnostic code specifically requires that a claimant avoid not only strenuous occupational activity, but strenuous recreational activity as well. Camacho v. Nicholson, 21 Vet. App. 360 (2007) At a medical evaluation in July 2007, the Veteran was instructed to decrease his intake of saturated fats and abstain from concentrated sugar. However, the evaluating physician stated that there were no limitations on the Veteran's activities. At a November 2008 VA examination, the Veteran stated that he had been a diabetic since 1989, but did not have a history of ketoacidosis or hypoglycemic reaction. He controlled his diabetes through the regular use of insulin. Upon examination, there were observations of abnormal peripheral sensory perception, and abnormal ankle-brachial indices. Notably, VA examiner stated that the effect of the Veteran's health on his daily activity was to "avoid strenuous activities." However, the Board does not construe this statement as a prescribed regulation of activities, as contemplated by the diagnostic code, but only that the Veteran chose to avoid strenuous activities. Physical evaluations since the November 2008 VA examination also suggest that his treating physicians were interested in seeing the Veteran become more active. At one November 2009 evaluation, the Veteran was advised to minimize his sodium intake and to exercise at least 30 minutes per day, approximately five times per week. If he was unable to move sufficiently, he was told to at least perform sitting exercises such as arm and leg lifts. He was also offered the opportunity to participate in VA's national weight management program, but declined. At a more recent June 2011 physical evaluation, the Veteran told that he would benefit from some weight management, and he was again offered the opportunity to be enrolled into the weight management program, which he again declined. The evaluating physician also recommended that the Veteran modify his lifestyle in such a way that he exercised on a regular basis. In support of his claim, the Veteran has referenced a VA treatment note from November 2009, which stated that the Veteran was "counseled as to the amount and level of exercise appropriate for the medical condition. Walking is used as the primary exercise." As discussed above, the Board also notes that the VA examiner observed that the Veteran needed to avoid strenuous activities. While it is true that a physician may counsel a patient on what types of physical activity may be unsafe in view of health limitations. However, the Board does not construe this statement as a "regulation of activities" as is contemplated by the relevant diagnostic code. Rather, the rating criteria are based on what measures are necessary to control a veteran's diabetic condition, such as the use of insulin and the types of food that can be eaten. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). It is clear that the term "regulation of activities," should be read in the context of how physical activities can adversely affect one's ability to control his diabetic condition. In this case, it is clear from the entire record that the Veteran's treating physicians prefer that he become more physically active, rather than less, to control his diabetes. The Board finds that the mere fact that some physicians have advised prudence in becoming more active does not rise to the level of regulation of activities as contemplated by DC 7813. Therefore, an increased rating is not warranted because medical advised regulation of activities is not shown. In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his diabetes mellitus is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility and weight are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartright v. Derwinski, 2 Vet. App. 24 (1991). The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his diabetes according to the appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's diabetes has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which these disabilities are evaluated. The Board finds that evidence persuasive. Next, the Board will consider whether referral for an extraschedular rating is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, the Board must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). To determine whether referral for extraschedular consideration is warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not shows that the Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria. Specifically, while Diagnostic Code 7913 is comprised of fairly narrow criteria, it also provides that separate ratings for secondary complications. Thus, the scope of Diagnostic Code 7913 is already very broadly defined, and adequate to cover the disability picture presented. The Veteran is in receipt of disability benefits for a number of secondary disabilities. Moreover, the Board has reviewed all of the Veteran's relevant symptoms related to the issue on appeal, and concludes that they were either addressed, or are addressed under other service-connected disabilities which are not the subject of this appeal. Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Because the applicable schedular rating criteria are adequate, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Based on evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected diabetes mellitus. The preponderance of the evidence is against the assignment of any higher rating and the appeal is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs