Citation Nr: 1329326 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 06-11 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a higher initial rating for type 2 diabetes mellitus, currently rated 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability for any portion of the appeal period prior to August 6, 2008. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from July 1969 to March 1970. This appeal arises to the Board of Veterans' Appeals (Board) from a March 2005-dated (April 2005-issued) rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that in pertinent part granted service connection and assigned an initial 10 percent rating for type 2 diabetes mellitus effective from February 17, 2005. In a May 2005 written, signed statement, the Veteran expressed dissatisfaction with the initial 10 percent rating. His statement meets all the requirements of a notice of disagreement (hereinafter: NOD). See Gallegos v Gober, 14 Vet. App. 50 (2000) (an NOD must (1) express disagreement; (2) be filed in writing; (3) be filed at the AOJ; (4) be filed with one year of the mailing date of the decision; and, (5) be filed by the claimant or authorized representative). After receiving the NOD, the RO issued a new rating decision in September 2005 that determined that the assignment of an initial 10 percent rating for diabetes mellitus was based on clear and unmistakable error and then granted a 20 percent rating for type 2 diabetes mellitus effective from February 17, 2005. In a second NOD received in November 2005, the Veteran disagreed with the 20 percent rating and his appeal has continued since then. The Board has recharacterized the issue on appeal to reflect the Veteran's dissatisfaction with the initial 20 percent diabetes rating. In January 2007, the RO issued a rating decision that in pertinent part denied entitlement to total disability rating based on individual unemployability (hereinafter: TDIU). The Veteran did not appeal that decision. The Board remanded the case in August 2008 for further development. The sole issue on appeal was the appeal for an initial rating greater than 20 percent for diabetes mellitus. In November 2010, the Board again remanded the case for development. In its November 2010 remand, the Board found that the record had raised the issue of TDIU due, in part, to diabetes mellitus. The Board then assumed jurisdiction over entitlement to TDIU, citing Rice v. Shinseki, 22 Vet. App. 447 (2009), for its authority to assert its jurisdiction over the TDIU claim absent a formal appeal for such benefits. The Board also remanded the TDIU claim for development. In September 2012, the Board again remanded the case for development. The Board referred service connection for hypertension and albuminuria for appropriate action. These claims are again referred for appropriate action. In June 2013, VA's Appeals Management Center (hereinafter: AMC) granted TDIU effective from August 6, 2008. Because the current appeal period began well-prior to August 6, 2008, there remains a portion of the appeal period for which TDIU has not been granted. Thus, the Board has recharacterized the issue shown on page one to reflect its continuing jurisdiction over entitlement to TDIU for the earlier portion of the appeal period. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. Throughout the appeal period, type II diabetes mellitus has been manifested by a requirement for insulin, restricted diet, and regulation of activities that require the Veteran to avoid strenuous occupational and recreational activity. 2. 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, are not shown. 3. For the period prior to August 6, 2008, the schedular criteria for TDIU under38 C.F.R. § 4.16(a) are met. CONCLUSIONS OF LAW 1. The criteria for a 40 percent initial schedular rating for type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2012). 2. For the portion of the appeal period prior to August 6, 2008, the criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (a), 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, adequate notice was provided in letters sent to the Veteran in March 2005, July 2005, and in March 2006. Regarding the claim for a higher initial rating for diabetes, the NOD with the initial rating does not trigger additional notice obligations under 38 U.S.C.A. § 5103 (a). See 38 C.F.R. § 3.159 (b) (3) (2012). Rather, the claimant's appeal of an initial rating triggers VA's duty to develop that claim, as set forth at 38 U.S.C.A. §§ 5104, 7105; 38 C.F.R. § 3.103. Under these, VA is required to advise the claimant of what evidence is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished in a statement of the case (hereinafter: SOC). The SOC provided the claimant with the relevant rating criteria for diabetes. The claimant was informed of the evidence needed to achieve the next-higher schedular rating, and also to obtain even higher ratings for diabetes. Thus, VA's duties under 38 U.S.C.A. §§ 5104 and 7105 have been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA out-patient treatment reports. The claimant was afforded VA medical examinations. The most recent VA examination report contains sufficient details and is adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (where VA undertakes to provide an examination (even where VA is not statutorily obligated to provide one) the Board erred in failing to ensure that the examination was adequate or to otherwise notify the Veteran why it would not provide the promised examination). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Diabetes mellitus has been rated 20 percent disabling for the entire appeal period under Diagnostic Code 7913. Under that code, diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, warrants a 20 percent evaluation. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities warrants a 40 percent evaluation. 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, warrants a 60 percent evaluation. 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 warrants a 100 percent evaluation. NOTE (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). The Veteran's chief argument for a higher initial schedular rating is that diabetes mellitus requires "regulation of activities" within the meaning of the diagnostic code. In Camacho v. Nicholson, 21 Vet. App. 360, 361 (2007), the Court addressed this issue. In that case, the Court deferred to VA's interpretation of Diagnostic Code 7913 and held, "...in order for a claimant to be entitled to a 40% disability rating, the evidence must show that it is medically necessary for the claimant to avoid strenuous occupational and recreational activities" [emphasis added at the Board]. The Board must therefore determine whether there is a plausible basis for finding a medical necessity to "avoid strenuous occupational and recreational activities" due to diabetes. VA has examined the Veteran several times during the appeal period. March and July 2005 VA diabetes mellitus compensation examination reports do not address whether diabetes has required a" regulation of activities" within VA's meaning of that term. Various VA out-patient treatment reports offer details of the Veteran's diet and eating regimen due to diabetes; however, a need to avoid certain foods does not appear to fall within the purview of avoiding strenuous occupational and recreational activities. An October 2006 VA diabetes mellitus compensation examination report mentions that limitation of activity is mainly due to heart problems. In August 2008, the Veteran's representative argued that diabetes mellitus causes a "practical restriction of his activities." In October 2008, the Veteran's private physician, U. Shirwany, M.D., reported that the Veteran was completely disabled from working; however, the physician's list of disabling conditions includes many disabilities. A March 2009 VA general medical compensation examination report addresses the issue further. In a March 2009 VA general medical compensation examination report, the physician stated, "There is questionable restriction of activities on account of diabetes, as he reports that he feels dizzy intermittently, but it may or may not be associated with his activities." In November 2010, the Board deemed that opinion inadequate and remanded the case for another examination. In December 2010, VA received the Veteran's Social Security Administration (SSA) file. A February 2006 SSA decision reflects that SSA determined that the Veteran was disabled from working beginning in October 2005. The primary diagnosis supporting the disability determination is chronic ischemic heart disease. The secondary diagnosis is diabetes mellitus. The SSA determination argues in favor of a finding that diabetes mellitus poses a medical necessity to avoid strenuous activity, as it indicates that he cannot perform any occupation, in part, due to diabetes. A March 2011 VA diabetes mellitus compensation examination report reflects that the Veteran reported that he felt dizzy, weak, and sick most of the time, along with multiple other symptoms, such as cramps in the legs, itching and burning in the hands, legs, and feet, tiredness, and nausea. The tiredness and nausea appear to be side effects of insulin, according to the examiner, a family nurse- practitioner. The examiner stated that the Veteran was not restricted from performing strenuous activity and also concluded that diabetes mellitus would not limit the Veteran's occupational functioning. With respect to avoiding strenuous occupational and recreational activities, the examiner did not address this question. In February 2012, the Veteran representative argued that the Veteran's need for more than one insulin injection daily, restriction of diet, hypoglycemic and ketoacidosis reactions that required monthly visits for health care should warrant a 40 percent rating. In September 2012, the Board again remanded the case for an examination and an opinion with respect to regulation of activities. The Veteran underwent a VA general medical compensation examination in November 2012. The examination disability benefits questionnaire asks the examiner to determine whether regulation of activities is required due to diabetes mellitus. To that question, the examiner checked "no." However, with respect to avoiding strenuous activity, the examiner reported, "DIABETES DOES NOT PRECLUDE SEDENTARY OCCUPATION OR MILD PHYSICAL LABOR. IT PRECLUDES STRENOUS PHYSICAL LABOR DUE TO INSULIN DEPENDENCE [upper case in original preserved]." The above-mentioned medical evidence is persuasive, as it is based on accurate facts and is supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The lay evidence discussed above is competent and credible with regard to descriptions of certain symptoms. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Although the November 2012 VA examination report contains internal inconsistency, the Board will reconcile those shortcomings in favor of the Veteran. Regardless of the examiner's indication that regulation of activities is not required, the examiner's ultimate conclusion, presented in large-case lettering, makes it clear that strenuous physical labor is precluded due entirely to diabetes mellitus. The Board will construe this to mean that strenuous activity, whether occupational or recreational, is precluded. Where strenuous activity is medically precluded, the Board can resolve any remaining doubt in favor of the Veteran and find that the Veteran must avoid strenuous occupational and recreational activity. The evidence reflects that throughout the appeal period, diabetes mellitus has been manifested by a requirement for insulin, restricted diet, and regulation of activities that require the Veteran to avoid strenuous occupational and recreational activity. Comparing these manifestations with the rating criteria, the 40 percent schedular rating criteria are more nearly approximated. The criteria of the next higher, 60 percent, schedular rating are not more nearly approximated because 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, are not shown. The evidence does not contain factual findings that demonstrate distinct time periods in which diabetes mellitus exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings for diabetes is therefore unnecessary. Hart, 21 Vet. App. at 510. After considering all the evidence of record, the Board finds that the evidence favors the claim. An initial 40 percent schedular rating for diabetes mellitus will therefore be granted. TDIU Prior to August 6, 2008 The Veteran contends that service connected disabilities prevent him from engaging in substantially gainful employment. In November 2012, a VA physician agreed that a service-connected disability would preclude gainful employment. The RO granted TDIU, but only for the latter portion of the appeal period. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Age may not be considered as a factor in evaluation service- connected disability; and unemployability, in service- connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2012). For the portion of the appeal period prior to August 6, 2008, coronary artery disease was rated 60 percent. Considering the grant of benefits in this decision, diabetes mellitus was rated 40 percent during that earlier period. Right upper extremity peripheral neuropathy is rated 20 percent, left upper extremity peripheral neuropathy is rated 20 percent, right lower extremity peripheral neuropathy is rated 10 percent, and left lower extremity peripheral neuropathy is rated 10 percent during that earlier period. The bilateral factors for the upper and lower extremities are 4.8 percent and 3.6 percent, respectively. See 38 C.F.R. § 4.26. Thus, the overall service-connected schedular rating (90 percent) for the earlier period meets the schedular guidelines provided for TDIU. See 38 C.F.R. §§ 4.16 (a), 4.25. Although during the earlier portion of the appeal period no VA examiner had addressed employability, a February 2006 SSA decision reflects that the Veteran was deemed unemployable due to service-connected ischemic heart disease and diabetes mellitus. The Board finds this persuasive, even though the SSA criteria for unemployability might differ from VA's criteria. The Veteran's Form 21-8940, Veteran's Application For Increased Compensation Based On Unemployability, reflects that he completed elementary school through 8th grade, but no high school. He has claimed no other education or training. He claimed that he last worked in November 2003 and that his occupation was truck driver. The law provides that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 53. In this case, the Board finds that the evidence for TDIU prior to August 6, 2008, is at least in relative equipoise. TDIU for the period prior to August 2, 2008, must therefore be granted. ORDER An initial 40 percent schedular rating for diabetes mellitus is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. For the period prior to August 6, 2008, TDIU is granted, subject to the laws and regulations governing payment of monetary benefits. ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs