Citation Nr: 1328797 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-05 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with cataracts. 2. Entitlement to a separate compensable rating for bilateral lower extremity peripheral vascular disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2007, the appellant testified at a hearing before a Decision Review Officer at the RO. In September 2012, he testified at a Board hearing before the undersigned Veterans Law Judge sitting at the RO. The case was remanded in February 2013. In addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim, known as Virtual VA. A review of the file reveals documents relevant to the issue on appeal, including VA treatment records and March 2006 VA correspondence. As noted in the February 2013 remand, the issue of entitlement to service connection for peripheral neuropathy of the extremities, including secondary to diabetes mellitus, has been raised by the record, but the RO has not yet addressed the matter in the first instance. Therefore, the Board still does not have jurisdiction over this issue, and it is again referred to the RO for appropriate action. The issue of entitlement to a separate compensable rating for bilateral lower extremity peripheral vascular disease 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's diabetes mellitus is not shown to require a regulation of activities (i.e., the avoidance of strenuous occupational and recreational activities). 2. The Veteran's cataracts have not been shown to be manifested by uncorrected near or distance visual acuity of worse than 20/40 or by impaired visual fields in either eye. 3. The Veteran underwent left eye cataract removal and artificial lens replacement surgery in June 2011, and right eye cataract removal and artificial lens replacement surgery in November 2011; he has not been shown to be aphakic at any time. CONCLUSIONS OF LAW 1. The criteria for an evaluation 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. §§ 4.7, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for a separate, compensable rating for bilateral cataracts, secondary to diabetes mellitus, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.30 (2012); 38 C.F.R. § 4.79, Diagnostic Codes 6028, 6063-6080 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with the notice requirements of the Veterans Claims Assistance Act of 2000 would serve no useful purpose. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Pursuant to the February 2013 remand, the AMC acquired all relevant VA treatment records and afforded the Veteran additional VA examinations in April and May 2013. All treatment records and examination reports have been associated with the claims file or Virtual VA electronic file. Hence, the RO/AMC has substantially complied with the February 2013 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). 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). 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 (1999). In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Following an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id. at 126. Where there is a question as to which of the 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. For diabetes mellitus requiring insulin or an oral hypoglycemic agent and restricted diet, a 20 percent rating is warranted. For diabetes mellitus requiring insulin, a restricted diet, and regulation of activities, a 40 percent rating is warranted. Regulation of activities is defined as the "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119, Diagnostic Code 7913. In Camacho v. Nicholson, 21 Vet. App. 360, 363-365 (2007), the United States Court of Appeals for Veterans Claims held that medical evidence is required to show that occupational and recreational activities have been restricted. Note 1 to Diagnostic Code 7913 instructs that compensable complications of diabetes mellitus are to be separately evaluated unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. The Veteran has been granted entitlement to service connection and separate evaluations for hypertension, erectile dysfunction, and coronary artery disease, all of which have been found to be secondary to diabetes mellitus. The only issues currently on appeal, however, are those contained within the Veteran's service-connected diabetes mellitus with cataracts and bilateral lower extremity peripheral vascular disease. Symptoms associated with hypertension, erectile dysfunction and coronary artery disease those separately rated disorders are not part of the issue on appeal and will not be considered at this time except as are specifically allowed for pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). The issue of entitlement to a separate compensable rating for bilateral lower extremity peripheral vascular disease is discussed in the remand section below. The portion of the Rating Schedule that addresses disabilities of the eyes was revised effective December 10, 2008. Only claims received on or after December 10, 2008 will be evaluated under the new criteria. 73 Fed. Reg. 66543-54 (Nov. 10, 2008). The Veteran's claim was received prior to December 10, 2008 and therefore the revised regulations are not for application. Preoperative cataracts are to be rated on the basis of impairment of vision, and postoperative cataracts are to be rated on the basis of impairment of vision and aphakia. 38 C.F.R. § 4.84a, Diagnostic Code 6028 (2008). The severity of visual acuity impairment is determined by applying the criteria set forth at 38 C.F.R. § 4.84a, which evaluates the degree of impairment on a scale from noncompensable to 100 percent. 38 C.F.R. § 4.84a, Diagnostic Codes 6061-6079 (2008). A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses, except in cases of keratoconus in which contact lenses are medically required. 38 C.F.R. § 4.75 (2008). 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 (2008). A noncompensable disability rating is warranted for impairment of central visual acuity when vision in both eyes is correctable to 20/40. 38 C.F.R. § 4.84a (2008). A 10 percent disability rating is warranted for visual acuity where vision is 20/50 in one eye and 20/40 in the other eye; or where the vision is 20/50 in each eye; or where vision is 20/70 in one eye and 20/40 in the other eye; or where vision is 20/100 in one eye and 20/40 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6078, 6079 (2008). The rating criteria in effect prior to December 10, 2008 allowed for evaluation of impairment of vision on the basis of loss of visual field vision in the alternative to evaluation on the basis of loss visual acuity. Separate evaluations for loss of visual acuity and visual field defect are not permissible. See 38 C.F.R. § 4.84a, Diagnostic Codes 6080-6081 (2008) ("Note: Rate on loss of central visual acuity or impairment of field vision. Do not combine with any other rating for visual impairment."). In this case, the Veteran has not alleged, and the evidence does not show, any loss of visual fields due to diabetes at any time during the appellate term. Hence, the Rating Schedule for impairment of visual fields will not be further discussed. Analysis The Veterans seeks entitlement to an increased initial evaluation for diabetes mellitus with cataracts, currently rated at 20 percent. At the Veteran's September 2012 Board hearing, he reported that he felt his diabetes mellitus had become worse in the seven years since he was first diagnosed. He reported taking insulin daily, being on a restricted diet, that his doctor told him he "needed to take it easy," and that he was unable to walk more than couple of hundred yards. The Veteran also stated that he had been having increased difficulty with his vision, but that he was able to see and read with glasses. The Veteran's VA treatment records show that he was diagnosed with Type II diabetes mellitus in May 2005 and was started on insulin and medication. In August 2006, his diabetes mellitus was noted to be "controlled," and in December 2006, he was diagnosed with insulin-dependent diabetes mellitus. The Veteran's records show regular evaluation for diabetes mellitus since that time, each time showing that the Veteran's diabetes was "controlled" or "at goal. The Veteran was instructed that he should continue his regular medication, insulin, and a restricted diet. In addition to treatment for diabetes mellitus, the Veteran's VA treatment records show regular treatment for coronary artery disease and chronic compensated systolic and diastolic heart failure/ischemic cardiomyopathy. In conjunction with treatment for these cardiovascular disorders the Veteran complained of frequent shortness of breath and fatigue, especially after physical activity. The Veteran has also been diagnosed with hyperlipidemia and obesity. In May 2010 and December 2011, the Veteran's physician advised him to exercise as tolerated, and in March 2010, the physician commended the Veteran for undertaking "decent activity" and encouraged him to continue working towards weight loss. In August 2006, the Veteran underwent a VA examination. The Veteran reported that the diabetes had caused him to lose weight, lose arm strength, and to experience arm tingling and numbness. He reported taking medication and insulin daily. Upon examination, the examiner found no skin abnormalities and the appellant's peripheral nerves were within normal limits. The examiner diagnosed the Veteran with diabetes mellitus Type II, hypertension, coronary artery disease, and peripheral vascular disease. In April 2013, the Veteran was afforded an additional VA examination. The examiner noted that the Veteran required prescribed insulin more than once a day, that he was on a low carbohydrate cardiac diet, and that he had not had any episodes of hypoglycemia or hospitalization in the prior year. The examiner specifically found that the Veteran's diabetes did not require regulation of activities as part of the medical management of that disorder. The examiner described the Veteran's diabetes mellitus as "well controlled with current treatment" with "no evidence of severity." As is clear from a review of the evidence described above, the criteria for a 40 percent evaluation for diabetes mellitus are not met. The evidence of record shows that the Veteran requires medication, insulin, and a restricted diet for control of his diabetes. There is, however, no medical evidence that the Veteran's diabetes requires a regulation of activities. The term "regulation of activities" means that the appellant must avoid strenuous occupational and recreational activities. 38 C.F.R. § 4.119. As the regulation of activities is the only criterion differentiating a 20 percent rating from a 40 percent rating, the Veteran's requirement of medication, insulin, and a restricted diet cannot be deemed to more nearly approximate the criteria for a 40 percent rating. 38 C.F.R. § 4.7. In the absence of some restriction on activity due to diabetes mellitus, a 40 percent rating cannot be assigned. While the Veteran has reported having difficulty with physical activity due to fatigue and shortness of breath, there is no medical evidence of record indicating that the Veteran has been advised by a physician not to perform exercise secondary to diabetes mellitus. On the contrary, the Veteran's medical records indicate that he has been encouraged to exercise by his physician. The April 2013 examiner clearly found that the Veteran did not have any restrictions on his activity due to diabetes mellitus. While the Veteran has stated that he was told by a doctor to "take it easy," the appellant has not asserted that he was specifically told that he needed to avoid strenuous occupational and recreational activities due to his diabetes mellitus. There is no medical evidence of record indicating that the Veteran's occupational and recreational activities have been restricted due to diabetes mellitus. See Camacho, 21 Vet. App. at 363-365. Therefore, the Veteran's diabetes mellitus has been clinically demonstrated to be no more than 20 percent disabling. Staged ratings are not warranted, and an increased rating is not warranted at any time during the appellate term. See Fenderson, 12 Vet. App. at 126. Regarding the Veteran's cataracts, there is no evidence that this disorder warrants a separate compensable evaluation. See 38 C.F.R. § 4.84a, Diagnostic Code 6028 (2008). In October 2006, the Veteran underwent a VA eye examination. Upon examination, the Veteran's best corrected distance visual acuity was 20/40 in each eye, and his best corrected near visual acuity was 20/25 in the right eye and 20/20 in the left eye. The Veteran's pupils reacted equally to light with no evidence of an afferent pupillary defect. The examiner found that the Veteran had normal conjuctiva with clear corneas, but also had grade 1 nuclear cataracts in both eyes. The examiner diagnosed the Veteran with nuclear cataracts, as likely as not related to diabetes mellitus. The examiner also diagnosed myopia, astigmatism, and presbyopia. VA treatment records show that in March 2011 the appellant was diagnosed with bilateral visually significant cataracts. Surgery was recommended, and in June 2011, the Veteran underwent phacoemulsification surgery to remove his left eye cataract. Follow-up examination in July 2011 showed that the Veteran was doing well and reported increased visual acuity, although testing showed that his left eye acuity had dropped from 20/40 to 20/70. The Veteran was diagnosed with bilateral senile cataracts and vitreous detachment, diabetes mellitus, and right eye choroidal nevus. In November 2011, the Veteran underwent phacoemulsification surgery to remove his right eye cataract. A December 2011 follow-up examination indicated that the Veteran was doing well after surgery, and no complications or vision problems were reported. His visual acuity was 20/25 in each eye. The Veteran was afforded an additional VA examination in May 2013. Upon examination, the Veteran's corrected near and distance visual acuity was measured at 20/40 or better in both eyes. The examiner noted that the Veteran had no pupillary defects, severe astigmatism, diplopia, or visual field defects, and that he had undergone cataract removal and had replacement intraocular lenses. The Veteran had not had any incapacitating episodes in the past 12 months, and the examiner found no evidence of diabetic retinopathy in either eye. The examiner diagnosed the Veteran with bilateral background diabetic retinopathy and pseudophakia. Pseudophakia is a condition in which the degenerated crystalline lens is replaced by mesodermal tissue. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1545 (32nd ed. 2012). This condition alone is not subject to compensation under the Rating Schedule, and there is no evidence that the Veteran's cataract surgery and artificial replacement lenses have caused any increased visual problems of any kind. At no time has the Veteran been diagnosed as aphakic. The Veteran's VA examinations both before and after his surgery show corrected visual acuity of 20/40 or better, and therefore any decrease in visual acuity the Veteran may have had from cataracts is of insufficient severity to warrant compensation under 38 C.F.R. § 4.84a, Diagnostic Code 6028 (2008). While the Veteran was tested as having 20/70 vision in his left eye in July 2011, there was no test result provided for his right eye, nor did the medical report specify whether this was his corrected or uncorrected vision. The Board therefore finds that the Veteran's cataracts do not warrant a separate, compensable rating under the Rating Schedule. 38 C.F.R. § 4.84a, Diagnostic Code 6028 (2008). They are considered a part of the diabetic process currently evaluated as 20 percent disabling under Diagnostic Code 7913. While the Veteran had left eye cataract surgery in June 2011 and right eye cataract surgery in November 2011, the evidence of record does not support the assignment of a temporary total rating pursuant to 38 C.F.R. § 4.30 in this case. The provisions of 38 C.F.R. § 4.30 pertaining to temporary total evaluations based upon convalescence provide that a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in: (1) Surgery necessitating at least one month of convalescence; (2) Surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or (3) Immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Here, the surgeries to remove the Veteran's cataracts were not shown at any time to have required a period of convalescence or recovery from manifestations incident to the procedure itself. The medical reports following the surgeries indicate that they went well and had no complications, and that the Veteran was alert and oriented, free of pain, and able to ambulate immediately after the procedures. Follow-up examinations indicated that the surgeries had been successful and that the Veteran's vision had significantly improved. The Veteran's treatment records do not indicate that he was advised to limit his activities in any way, nor has the appellant ever indicated that he was functionally limited by the recovery or residuals of cataract surgeries. Hence, the Board concludes that a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.30(b) is not assignable in this case. The Board has considered the application of 38 C.F.R. § 3.321(b)(1) (2012), for exceptional cases where schedular evaluations are found to be inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and his symptomatology. The overall disability picture does not show any significant impairment beyond that contemplated by the 20 percent rating, the criteria for which precisely match the required treatment for management of this disease and its symptoms. The Veteran has not required any hospitalization, nor has he been shown to have any additional functional or occupational impairment due to diabetes mellitus or cataracts. As such, the Veteran's disability picture is contemplated by the rating schedule and those criteria are adequate to address his symptoms and average impairment of earning capacity. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the rating schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In sum, there is no basis for assignment of a rating in excess of 20 percent for diabetes mellitus with cataracts and bilateral lower extremity peripheral vascular disease. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with cataracts is denied. REMAND At an August 2006 VA examination, the Veteran was diagnosed with diabetes mellitus as well as peripheral vascular disease, due to abnormal ankle/brachial index. In January 2007, the Veteran was granted service connection for diabetes mellitus with cataracts and bilateral lower extremity peripheral vascular disease. The Veteran appealed the assignment of an initial 20 percent rating for this disorder, and in February 2013, the Board remanded the current issue in part to provide the Veteran with a VA examination to determine the current severity of his diabetes mellitus "and all associated residuals." While the Veteran was afforded a VA veins and arteries examination in June 2013, the examiner discussed only the Veteran's coronary artery disease. The examiner did not consider or complete the examination report sections concerning peripheral vascular disease. Peripheral vascular disease was also not discussed in the April 2013 VA examination for diabetes mellitus. As noted previously, compensable complications of diabetes mellitus warrant separate ratings per Note 1 to Diagnostic Code 7913. In this case, the severity of the Veteran's bilateral lower extremity peripheral vascular disease cannot presently be determined from the evidence of record. The law obligates that the Board ensure that the RO and AMC comply with its directives; the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran should be afforded an additional VA examination for the purpose of determining the current severity of his peripheral vascular disease as distinct from any pathology caused by his coronary artery disease. Thereafter, the AMC/RO must determine whether the findings warrant assignment of a separate compensable evaluation for such diabetic complication. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should schedule the Veteran for a VA examination to determine the current severity of his bilateral lower extremity peripheral vascular disease. The claims folder, access to Virtual VA, and a copy of this remand must be provided to and reviewed by the physician examiner as part of the examination. The physician examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner should describe in detail all symptoms reasonably attributable to bilateral lower extremity peripheral vascular disease secondary to diabetes and its current severity, particularly in terms of the rating criteria at 38 C.F.R. § 4.104, Diagnostic Code 7114 (2012). In this regard, the examiner should indicate if the peripheral vascular disease secondary to diabetes mellitus is manifested by claudication on walking less than 25 yards, and whether there is persistent coldness of the lower extremities. The examiner should also indicate ankle/brachial index of both the right and left lower extremities. The examiner should also note whether the Veteran has ischemic limb pain at rest and/or deep ischemic ulcers associated with the service-connected peripheral vascular disease secondary to diabetes mellitus. The examiner must differentiate any lower extremity circulatory pathology caused by peripheral vascular disease from that caused by complications of coronary artery disease. The examiner should record all pertinent medical complaints, symptoms, and clinical findings and discuss whether the complaints and reported symptoms are supported by the objective findings. 2. The AMC/RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 3. The AMC/RO must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The AMC/RO must ensure that the examiners documented their consideration of all records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 4. After undertaking any other appropriate development, the AMC/RO should readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs