Citation Nr: 1328599 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-03 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a liver condition, to include as secondary to the Veteran's service connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to the Veteran's service connected diabetes mellitus. 3. Entitlement to an increased evaluation for diabetes mellitus, currently evaluated as 20 percent disabling. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Colin E. Kemmerly, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to April 1971, and from September 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. A videoconference hearing before the undersigned Veterans Law Judge was held in April 2013. The Board notes that there is some concern in the record as to whether the Veteran has properly perfected the appeal of his claim of TDIU. However, the United States Court of Appeals for Veterans Claims (Court) has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, even if the Veteran's actual appeal were not considered to have been perfected, the Board finds this claim properly before the Board. The issue of referral for a TDIU 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 Veteran withdrew his appeal seeking service connection for a liver condition during his April 2013 hearing. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current erectile dysfunction disability is secondary to his service connected diabetes mellitus. 3. The Veteran's service connected diabetes currently requires the regular use of insulin and a restricted diet. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal the Veteran's claim of entitlement to service connection for a liver condition by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Resolving doubt in favor of the Veteran, his erectile dysfunction disability is secondary to his service connected diabetes mellitus. 38 U.S.C.A. §§ 1110 , 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 , 3.303, 3.304, 3.310 (2012). 3. The criteria for an evaluation in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159 , 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. For the claim being withdrawn, the claim being granted, and the claim being remanded, the Board finds any further discussion of the VCAA moot. Nevertheless, as to the Veteran's claim of entitlement to an increased rating for diabetes, the Board finds that VCAA letters dated in March 2008 and May 2009 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced attorney and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, most recently in September 2012. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Withdrawal of claim for service connection for a liver condition. The Veteran withdrew his claim of service connection for a liver disorder in April 2013, during his hearing before the undersigned Veterans Law Judge, and a written transcript of that withdrawal has now been associated with the Veteran's claims file. VA regulation provides for the withdrawal of an appeal to the Board by the submission of a written request to that effect at any time before the Board promulgates a final decision on the matter in question. See 38 C.F.R. § 20.204(b) (2011); Hanson v. Brown, 9 Vet. App. 29, 31 (1996) (when a claim is withdrawn by a Veteran, it ceases to exist; it is no longer pending and it is not viable). The Board had not yet issued a final decision on this case, therefore the Veteran's withdrawal of this issue is valid. The withdrawal of an appeal effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, in such an instance, dismissal of the appeal is appropriate. See 38 U.S.C.A. § 7105(d). Because the Veteran has clearly expressed his desire to terminate his appeal for these benefits, because he has done so in writing, and because the Board had not yet promulgated a decision on his appeal at the time of his request for withdrawal, the legal requirements for a proper withdrawal have been satisfied. 38 C.F.R. § 20.204(b). Accordingly, further action by the Board on this particular matter is not appropriate and the Veteran's appeal as to this issue should be dismissed. 38 U.S.C.A. § 7105(d). Entitlement to service connection for erectile dysfunction, to include as secondary to the Veteran's service connected diabetes mellitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). T hat an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112 , 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (2012). Further, secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2012). Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Taking into account all relevant evidence, the Board finds that service connection is warranted for erectile dysfunction, as secondary to the Veteran's service connected diabetes mellitus. In this regard, the Board finds the evidence at least in equipoise as to the question of etiology of the Veteran's erectile dysfunction. While a December 2006 VA examination report indicated that the Veteran's erectile dysfunction was less likely related to his diabetes, and more likely related to his diagnosis of hypertension, an April 2008 report of VA examination indicated that it was unable to resolve the issue of etiology of the Veteran's erectile dysfunction without resorting to speculation. Further, a statement from a private physician dated August 2008 indicates that in his opinion, the Veteran has erectile dysfunction related to his diabetes. Considering this evidence, and all evidence of record, including the Veteran's and his wife's statements regarding onset of this disability, the Board finds that the evidence of record is in equipoise as to the question of whether the Veteran's erectile dysfunction is related to his service connected diabetes. As such, the Veteran is entitled to the benefit of the doubt, and service connection is therefore warranted for erectile dysfunction. Entitlement to an increased evaluation for diabetes, currently evaluated as 20 percent disabling. Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as in this claim, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1 , 4.2 (2012); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, 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. In this case the Board has not found factually distinct time periods which would warrant different ratings, and therefore has not "staged" this claim. The Veteran's diabetes mellitus is currently evaluated as 20 percent disabling pursuant to 38 C.F.R. 4.119, Diagnostic Code 7913, which provides that diabetes that requires insulin and a restricted diet or oral hypoglycemic agents and restricted diet warrants a 20 percent evaluation. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent disability 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 rated. A 100 percent disability 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 , DC 7913. Regulation of activities is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). Taking into account all relevant evidence of record, the Board finds that an increased rating is not warranted for the Veteran's service connected diabetes. In this regard, the evidence of record simply does not show that the Veteran's diabetes requires regulation of activities, such that the criteria for a higher evaluation would be met. Reviewing the relevant evidence of record, an April 2008 report of VA examination noted that the Veteran took insulin shots twice a day, and was following a diabetic diet. There were no episodes of hypoglycemia or ketoacidosis noted. The examiner specifically noted that the Veteran did not have to regulate his activities because of his diabetes. A September 2012 VA examination report noted that the Veteran requires insulin injections more than once daily, but specifically found that the Veteran did not require regulation of activities as part of the medical management of his diabetes. He was also noted to have had no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past year. The record as a whole, including the evidence cited above, fails to demonstrate that the Veteran's diabetes mellitus requires regulation of activities, as that term is defined in the applicable regulation. The Board also notes that ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, were not demonstrated in the clinical records. Accordingly, as there is no evidence that the Veteran's diabetes mellitus requires restriction of activities, the Board concludes that his symptoms more closely approximated the criteria for a 20 percent evaluation. ORDER The appeal as to the claim of entitlement service connection for a liver condition is dismissed. Entitlement to service connection for erectile dysfunction, as secondary to the Veteran's service connected diabetes mellitus, is granted. Entitlement to an increased evaluation for diabetes mellitus, currently evaluated as 20 percent disabling, is denied. REMAND As to the Veteran's claim of entitlement to TDIU, TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). TDIU ratings may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2012). However, even when the percentage requirements are not met, entitlement to a total rating, on an extrascheduler basis, may nonetheless be granted, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board notes that the Veteran's currently highest rated disability is diabetes, at a 20 percent evaluation, and all of his service connected disabilities combine to a 40 percent evaluation. Therefore, he does not meet the scheduler requirements for a grant of TDIU. However, the Board notes that the Veteran has only a 9th grade education, and has worked semiskilled and unskilled positions for most of his life, including as a commercial driver. The Veteran has stated that he is no longer able to obtain a commercial driver's license due to his diabetes diagnosis. The Board finds, considering the unique circumstances of this case and the Veteran's employment and education history, that it would be appropriate to consider an extrascheduler evaluation. The Board realizes however it cannot assign an extra-schedular evaluation in the first instance under § 4.16(b) or § 3.321(b)(1). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). See also Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Although the Board may not award benefits under § 4.16(b) or § 3.321(b)(1) in the first instance, it may adjudicate whether a referral to the Under Secretary for Benefits or Director of Compensation and Pension Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the appropriate official has determined that an extra-schedular evaluation is not warranted, does the Board have jurisdiction to decide the claim on the merits. In fact, the Court has held that although the Board is precluded from initially assigning an extra-schedular rating, there is no restriction on the Board's ability to review the adjudication of an extra-schedular rating under § 4.16(b) or § 3.321(b)(1) once the Director of C & P determines that an extra-schedular rating is not warranted. Anderson, 22 Vet. App. at 427-28. See also Floyd, 9 Vet. App. at 96-97. In the present case, the Director of Compensation and Pension has not yet made this initial determination, and the Board finds evidence that may warrant an extraschedular rating, so the Board is referring this case to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration of an extra-schedular evaluation for TDIU under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The RO must submit the Veteran's claim for TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). 2. If the benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. 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