Citation Nr: 1328765 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 06-03 503A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 60 percent disabling. 2. Entitlement to an increased rating for right eye diabetic retinopathy prior to April 10, 2012. 3. Entitlement to an increased rating for bilateral diabetic retinopathy with posterior subcapsular cataract, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from June 1970 to July 1990. This matter came to the Board of Veterans' Appeals (Board) from a September 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in March 2010 and March 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by taking appropriate action to obtain private treatment records, providing VA examinations and issuing supplemental statements of the case. See Stegall v. West, 11 Vet. App. 268 (1998). In the September 2004 rating decision, the RO denied a rating in excess of 40 percent for diabetes mellitus. In July 2013, the RO assigned a 60 percent disability rating, effective April 4, 2012. However, the issue remain in appellate status as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The September 2004 rating decision also denied a rating in excess of 10 percent for right eye diabetic retinopathy. By rating decision in July 2013, the RO combined the right eye diabetic retinopathy with the already service-connected left eye diabetic retinopathy and added posterior subcapsular cataract to the overall description of the service-connected bilateral diabetic retinopathy disability. The RO assigned a 40 percent rating, effective from April 10, 2012. In view of the RO's actions, the Board has described the issues as shown on the first page of this decision in an effort to add some clarity to this appeal. FINDINGS OF FACT 1. Prior to April 4, 2012, the Veteran's service-connected diabetes mellitus was manifested by requirement of insulin, restricted diet and regulation of activities. 2. From April 4, 2012, the Veteran's service-connected diabetes mellitus has not been manifested by 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. 3. Prior to January 16, 2009, the Veteran's service-connected right eye diabetic retinopathy effectively resulted in blindness with only light perception in the right eye; the best distant vision of the left eye obtainable after best correction was no worse than 20/30. 4. From January 16, 2009, to April 10, 2012, the Veteran's service-connected right eye diabetic retinopathy effectively resulted in blindness with only light perception in the right eye; the best distant vision of the left eye obtainable after best correction was no worse than 20/40. 5. From April 10, 2012, the Veteran's service-connected bilateral diabetic retinopathy with posterior subcapsular cataract, has effectively resulted in blindness with only light perception in the right eye and by visual acuity of no worse than 20/40 in the left eye as the best distance vision obtainable after best correction. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation in excess of 40 percent, prior to April 4, 2012, for the Veteran's service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119 and Code 7913 (2012). 2. The criteria for entitlement to a disability evaluation in excess of 60 percent, from April 4, 2012, for the Veteran's service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119 and Code 7913 (2012). 3. The criteria for entitlement to a disability evaluation in excess of 10 percent, prior to January 16, 2009, for the Veteran's service-connected right eye diabetic retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.76, 4.76a, 4.84a, 4.119, and Diagnostic Codes 6099-6006 (2008). 4. The criteria for entitlement to a disability evaluation of 30 percent (but no higher) from January 16, 2009, to April 10, 2012, for the Veteran's service-connected right eye diabetic retinopathy have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.76, 4.76a, 4.84a, 4.119, and Diagnostic Codes 6099-6006, 6070 (2008). 5. The criteria for entitlement to a disability evaluation in excess of 40 percent from April 10, 2012, for the Veteran's service-connected for bilateral diabetic retinopathy with posterior subcapsular cataract have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.76, 4.76a, 4.84a, 4.119, and Diagnostic Codes 6099-6006 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in May 2004. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in May 2008, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the May 2009 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in October 2011 and July 2013 supplemental statements of the case, following the provision of notice in May 2008. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained VA and private treatment records, reviewed Virtual VA records, assisted the Veteran in obtaining evidence, afforded the Veteran VA examinations (in July 2004, August 2006 and April 2012), and associated a May 2013 addendum opinion with the Veteran's claims file. In a July 2013 statement, the Veteran's representative stated that there was no additional evidence to submit and requested the claim be forward to the Board immediately. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. Increased Ratings The present appeal involves the Veteran's claims that the severity of his service-connected diabetes mellitus and right eye diabetic retinopathy warrant higher disability ratings. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). (Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. I. Diabetes Mellitus The Veteran's service-connected diabetes mellitus has been rated by the RO under the provisions of Diagnostic Code 7913. Under this regulatory provision, a 10 percent rating is warranted for diabetes mellitus manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus for requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A rating of 60 is warranted for 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. A rating of 100 percent is warranted for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 for diabetes mellitus is successive because each higher evaluation requires the elements of the lower evaluation. "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). 38 C.F.R. § 4.7 allows for a higher rating if the disability picture more nearly approximates the criteria for that rating. A February 2004 VA addendum shows insulin given in his right upper arm. On VA examination in July 2004, the Veteran denied episodes of ketoacidosis. He had occasional mild episodes of hypoglycemia. One occurred a year prior and was resolved with candy. He has never required hospitalization and is not on a restricted diet. The Veteran had been treated by Sergio Rovner, M.D. for diabetes mellitus. An October 2004 treatment record shows that the plan was to refer the Veteran to a dietitian, and evaluate him for an insulin pump and his insulin regimen. A March 2005 treatment record shows that had no hypoglycemia events, had not been following his diet. August 2006 to August 2009 treatment records show he was on an insulin pump. March 2005 to July 2008 VA treatment records also note insulin pump treatment. In a notice of disagreement received in September 2005, the Veteran stated he is insulin dependent and on a restricted diet and exercise program. He stated he also took oral medication. He stated that his medical records do not show that his diabetes has "ever been under control." He noted that he is on the insulin pump that he has to wear for the rest of his life. The Board notes that no other symptoms were described. When the Veteran underwent a VA examination in August 2006, he denied a history of hospitalization due to ketoacidosis or hypoglycemia. He denied hypoglycemia. He stated that activity is limited due to lower back pain and poor eyesight. He walked at least once a day. He was on insulin. An August 2009 treatment record notes he had been using a pump and had occasional hyperglycemic episodes in the middle of the day. He had been compliant with medication. The assessment was diabetes mellitus type I. The pump settings were adjusted in an attempt to lower hyperglycemic events in the middle of the day. The Veteran was afforded a VA examination on April 4, 2012. The VA examiner did not mark the appropriate boxes to indicate restricted diet, use of oral hypoglycemic agents, and insulin injections. Instead, the examiner marked the appropriate box to indicate that the Veteran used another form of treatment-insulin pump. The VA examiner marked the appropriate box to indicate no required regulation of activities as part of medical management of diabetes mellitus. The VA examiner also marked the appropriate boxes to indicate that the Veteran visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic episodes. There were no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. The examiner also marked the appropriate boxes to indicate no progressive unintentional weight loss and loss of strength. Based on the above, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent prior to April 4, 2012. While the Veteran had diabetes requiring insulin, restricted diet and regulation of activities, there were no episodes of ketacidosis or hypoglycemic reactions requiring hospitalization or visits to a diabetic care provider. There are also no complications that would not be compensable if separately evaluated. Also, there was no evidence of progressive weight loss or strength to warrant higher ratings. As noted earlier, the RO increased the rating to 60 percent, effective from April 4, 2012, based on the disability picture shown at the VA examination of that same date. The Board also finds that the preponderance of the evidence is against a rating in excess of 60 percent from April 4, 2012. There was no evidence of more than one daily insulin injection. While there was restricted diet and regulation of activities, there was no evidence of ketacidosis or hypoglycemic reactions requiring hospitalizations. While the Veteran visited a diabetic care provider, it was not on a weekly basis, but rather less than twice a month. There was also no progressive loss of weight and strength, or complications that would be compensable if separately rated. The Board acknowledges that the Veteran's diabetes results in significant impairment. However, the Board is obligated to apply the regulatory rating criteria. For reasons explained above, increased ratings for the diabetes are not warranted at any time during the period contemplated by this appeal. The Veteran may always advance an increased rating claim if the severity of his diabetes should increase in the future. II. Right Eye Diabetic Retinopathy The Board notes that regulations for the rating of eye disabilities were revised during the course of the appeal. The new rating criteria are applicable to applications for benefits received by VA on or after December 10, 2008. See Notice, 73 Fed. Reg. 66543, 66544 (November 10, 2008). The Veteran's claim was received in April 2004. Under the applicable criteria, the severity of visual acuity loss is determined by applying the criteria set forth at 38 C.F.R. § 4.84a. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based upon the degree of the resulting impairment of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061 to 6079. The percentage evaluation will be found from Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. 38 C.F.R. § 4.83a, Table V. In rating impairment of visual acuity, the best distant vision obtainable after best correction with glasses will be the basis of rating, except in cases of keratoconus in which contact lenses are medically required. 38 C.F.R. § 4.75. Diagnostic Codes 6027 and 6028 for postoperative traumatic cataract and senile (and others) cataract, respectively are rated on impairment of vision. 38 C.F.R. § 4.84a. For disease of the eye, a minimum rating of 10 percent is warranted during active pathology. 38 C.F.R. § 4.84a. For anatomical loss in one eye, a 40 percent rating is warranted if vision is 20/40 in the other eye. A 50 percent rating is warranted for anatomical loss of one eye and a vision of 20/50 in the other eye. A 60 percent rating is warranted for anatomical loss of one eye and vision of either 20/70 or 20/100 in the other eye. A 70 percent rating is warranted for anatomical loss of one eye and vision of 20/200 in the other eye. An 80 percent rating is warranted for anatomical loss of one eye and vision of 15/200 in the other eye. A 90 percent rating is warranted for anatomical loss of one eye and vision of 10/200 in the other eye. A 100 percent rating is warranted for anatomical loss of one eye and vision of 5/200 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6063-6066. Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination other eyes reveals the perception of objects, hand movements or counting fingers cannot be accomplished at 3 feet...or counting fingers at distances less than 3 feet, being considered of negligible utility. 38 C.F.R. § 4.79. Under Diagnostic Codes 6067 to 6070, for blindness in 1 eye, having only light perception, a rating of 30 percent is warranted if visual acuity in the other eye is 20/40. 38 C.F.R. § 4.84a, Diagnostic Code 6070. A rating of 40 percent is warranted if visual acuity in the other eye is 20/50. 38 C.F.R. § 4.84a, Diagnostic Code 6069. A rating of 50 percent is warranted if visual acuity in the other eye is 20/70. 38 C.F.R. § 4.84a, Diagnostic Code 6069. A rating of 60 percent is warranted if visual acuity in the other eye is 20/100. Id. A rating of 70 percent is warranted if visual acuity in the other eye is 20/200. 38 C.F.R. § 4.84a, Diagnostic Code 6068. A rating of 80 percent is warranted if visual acuity in the other eye is 15/200. 38 C.F.R. § 4.84a, Diagnostic Code 6068. A rating of 90 percent is warranted if visual acuity in the other eye is 10/200. Id. A rating of 100 percent is warranted if visual acuity in the other eye is 5/200. 38 C.F.R. § 4.84a, Diagnostic Code 6067. A July 2003 VA treatment record shows right eye acuity of Counting Fingers (CF) 2 ft. Pinhole No Improvement (PHNI) and 20/20 in the left eye. An July 2003 treatment record from Southwest Retina Consultants, P.A. shows visual acuity in the right eye at 20/200 PHNI, and in the left eye at 20/20 PHNI. A January 2004 treatment record from Southwest Retina Consultants shows visual acuity in the right eye at CF at FACE PH 20/NI, and in the left eye at 20/20 PH 20/. An April 2004 treatment record from Southwest Retina Consultants shows visual acuity in the right eye at CF at FACE PHNI, and in the left eye at 20/20. A May 2004 VA treatment record shows visual acuity of 20/CF at 18" PH 20/NI in the right eye and 20/20 in the left eye. A November 2004 VA treatment record shows 20/CF at 2 ft. PH 20/ in the right eye and 20/25 PH 20/ in the left eye. April 2005, August 2005 and February 2006 VA treatment record shows CF at 3 ft. in the right eye and 20/20 in the left eye. In a notice of disagreement received in September 2005, the Veteran stated that his right eye had not been correctable for at least four years and that he had "no use of it for reading or driving and I cannot see the eye chart". A June 2006 VA treatment record shows CF at 3 ft. in the right eye and 20/40- PH NI in the left eye. An August 2006 VA examination shows right eye uncorrected/corrected far vision and uncorrected/corrected near vision at 20/CF. Left eye uncorrected far vision was 20/100 and corrected far vision was 20/30. Uncorrected/corrected near vision was 20/200. An April 2007 VA treatment record shows visual acuity of 20/CF at 1 ft. PH 20/NI in the right eye and 20/25 in the left eye. A January 2008 consultation examination by Gregory Trubowitsch, M.D. notes visual acuity in the right eye was "Finger counting" and in the left eye was 20/30. A February 2008 VA treatment record shows right eye vision of CF at 1 ft. PHNI, and left eye vision of 20/30-2 PHNI. An April 2008 treatment record from Southwest Retina Consultants shows visual acuity in the right eye at 20/CF at 1 ft. PHNI, and in the left eye at 20/30-1 PH 20/NI. A September 2008 treatment record from Southwest Retina Consultants shows visual acuity in the right eye at 20/CF at 1 ft. PHNI, and in the left eye at 20/30 PH 20/NI. A January 16, 2009 treatment record from Southwest Retina Consultants show visual acuity in the right eye at 20/CF at 1 ft. PH 20/NI, and in the left eye at 20/40 PH 20/NI. A February 2009 treatment record from Southwest Retina Consultants show visual acuity in the right eye at 20/CF at 2 ft. PH 20/NI, and in the left eye at 20/40 PH 20/NI. A May 2009 treatment record from Southwest Retina Consultants show visual acuity in the right eye at 20/CF at 1 ft. PHNI, and in the left eye at 20/50 PH 20/40. September 2009 treatment record from Southwest Retina Consultants shows visual acuity in the right eye at 20/CF at 1 ft. PHNI, and in the left eye at 20/30 PH 20/NI. An April 10, 2012 VA examination report notes a visual acuity of 20/100 uncorrected near in the left eye and 20/40 corrected distance in the left eye. The examination reports also notes bilateral cataract. The Board notes here that the examiner checked the box on the examination report to indicate anatomical loss of the right eye. However, this appears to be an error since clinical examination of the right eye included a full description of the conjunctiva, cornea, anterior chamber, iris and lens, as well as the optic disc, macula vessels and vitreous. In a section for remarks, the examiner commented that the Veteran was legally blind in the right eye. It therefore appears that there is no actual anatomical loss of the right eye. Prior to January 16, 2009, vision in the right eye was no worse than CF at 1 ft. and vision in the left eye was no worse than 20/30. Under Diagnostic Code for blindness in 1 eye, having only light perception (pursuant to 38 C.F.R. § 4.79), a 30 percent rating or higher is not warranted since vision in the left eye was not 20/40 or worse. However, it does appear that a 30 percent rating is warranted from January 16, 2009, since eye exams beginning this date forward show that left eye vision was 20/40. Noted in January 2009 and February 2009 treatment records from Southwest Retina Consultants vision was 20 CF at 1 ft. in the right eye, and 20/40 vision in the left eye. The Board acknowledges a May 2009 treatment record from Southwest Regina Consultants that shows visual acuity in the left eye at 20/50. However, the best vision at the time of the appointment was with a pinhole at 20/40. Thus, a rating in excess of 30 percent is not warranted. As noted in the introduction, by rating decision in July 2013, the RO combined the diabetic retinopathy in both eyes, added cataract to the disability description, and assigned a 40 percent rating effective from April 10, 2012 (the date of the VA examination). However, regardless of whether the provisions for anatomical loss of the right eye are used, or whether the rating criteria for loss of use or blindness of the right eye with only light perception are used, there is no basis for a rating in excess of 40 percent since left eye vision is not worse than 20/40. In making the above determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision than set forth herein. Should the disability increase in severity in the future, the Veteran may always file a new claim for an increased rating. Extraschedular Consideration In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. In this case, the symptoms described by the Veteran fit squarely with the criteria found in the relevant Diagnostic Codes for the disabilities at issue. In short, the rating criteria contemplate not only his symptoms but the severity of his disabilities. For these reasons, referral for extraschedular consideration is not warranted. ORDER The appeal is granted in part and denied in part as follows, subject to laws and regulations governing payment of VA monetary benefits: Entitlement to a disability evaluation in excess of 40 percent, prior to April 4, 2012, for the Veteran's service-connected diabetes mellitus is not warranted. Entitlement to a disability evaluation in excess of 60 percent, from April 4, 2012, for the Veteran's service-connected diabetes mellitus is not warranted. Entitlement to a disability evaluation in excess of 10 percent, prior to January 16, 2009, for the Veteran's service-connected right eye diabetic retinopathy is not warranted. Entitlement to a disability rating in excess of 40 percent, from April 10, 2012, for the Veteran's service-connected bilateral diabetic retinopathy with posterior subcapsular cataract is not warranted. Entitlement to a 30 percent rating (but no higher) for the Veteran's service-connected right eye diabetic retinopathy from January 16, 2009, to April 10, 2012, is warranted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs