Citation Nr: 1329337 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-06 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from May 1955 to May 1958, from July 1958 to July 1964, and from May 1965 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). VA examination reports dated in March 2006 and July 2008 raise the issues of entitlement to service connection for coronary artery disease and for hypertension, both as secondary to the service-connected diabetes mellitus, type II, disorder. Additionally, a VA examination report dated in September 2007 raises the issue of entitlement to service connection for peripheral vascular disease, to include as secondary to coronary artery disease. Finally, in a January 2012 statement, the Veteran's representative filed an informal claim of entitlement to service connection for posttraumatic stress disorder. These issues have not been adjudicated by the RO. As such, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II, requires an oral hypoglycemic agent, restricted diet, and insulin, but does not require regulation of activities. 2. The Veteran's diabetes mellitus, type II, has separately rated complications including peripheral neuropathy of the lower extremities, ecrobiosis lipoidica diabeticorum with telangiectasia, special monthly compensation based on loss of use of a creative organ, and a noncompensably rated complication of erectile dysfunction. CONCLUSION OF LAW The criteria for an initial evaluation greater than 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran's claim of entitlement to an increased evaluation for diabetes mellitus, type II, arises from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records, as well as his VA outpatient and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the March 2006 and December 2010 examiner took into account the Veteran's statements and treatment records, which allowed for a fully- informed evaluation of the diabetes mellitus, type II disability. Id. The June 2013 addendum to the December 2010 VA examination was provided by the December 2010 examiner following a review of the claims file, CPRS, and Vista Web; however, the examiner stated that Virtual VA records were not reviewed, as directed in the February 2013 Board remand. The Board finds, however, the addendum opinion adequate, as it was offered after the examiner reviewed all of the pertinent medical and lay evidence of record, and the examiner provided a rationale for the opinion expressed. In this regard, although Virtual VA records were not reviewed by the examiner, there is no pertinent medical and lay evidence with respect to the Veteran's current issue on appeal in such database; thus, there is no prejudice to the Veteran. Thus, the Board finds the addendum adequate, as there has been substantial compliance with the remand directives. Substantial compliance, not strict compliance, with the terms of a remand is required. D'Aries v. Peake, 22 Vet. App. 97 (2008). As such, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. Indeed, in an April 2013 letter, the RO requested that the Veteran complete consent forms regarding all VA and non-VA healthcare providers who provided recent treatment for his for diabetes mellitus, type II; however, the Veteran failed to respond to such request. 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473 (2006); see also 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); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in, which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Service connection was granted for diabetes mellitus, type II, by a rating decision dated in April 2006 and a disability rating of 20 percent was assigned thereto, effective from September 30, 2005. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also 38 C.F.R. § 3.400 (2013). After filing a timely notice of disagreement, the Veteran perfected this appeal in February 2007 seeking an initial evaluation in excess of 20 percent. Subsequently, in a January 2008 rating decision, the RO granted service connection for necrobiosis lipoidica diabeticorum (NLD) with telangiectasia, associated with diabetes mellitus, type II, and assigned a 10 percent rating effective September 5, 2006. In a June 2011 rating decision, the RO granted service connection for erectile dysfunction associated with diabetes mellitus, type II, and assigned a noncompensable rating from September 30, 2005. In the same decision, the RO granted special monthly compensation based on loss of use of a creative organ, effective September 30, 2005. Additionally, the RO granted service connection for peripheral neuropathy of the right and left lower extremities associated with diabetes mellitus, type II, and assigned separate 10 percent ratings, respectively, effective September 30, 2005. Pursuant to Diagnostic Code 7913, diabetes mellitus warrants a 20 percent rating when such requires insulin and restricted diet, or; oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, a 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 total rating of 100 percent is warranted when the diabetes mellitus requires more than one daily injection of insulin, a 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. Note (1) provides that noncompensable complications are considered part of the diabetic process, while compensable complications are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating. Id. The term "regulation of activities" means that the Veteran must avoid strenuous occupational and recreational activities. Id. "Restriction of activities" must be objectively confirmed. See Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007). Private treatment records dated in July 2004 through 2005 note diagnoses of diabetes mellitus. Such records show the Veteran is prescribed an oral hypoglycemic agent to control his diabetes mellitus, type II, disorder. A May 2006 VA examination report shows that the Veteran reported episodes of hypoglycemic reactions or ketoacidosis, however, he had never been hospitalized for such. The Veteran reported that he sought treatment at his diabetic care provider monthly or less often. His diet was reported as restricted. His medications included oral hypoglycemic agents, namely, actos and glucotrol. He reported that he was not restricted in strenuous activity. He denied visual symptoms related to his diabetes, as well as diabetic nephropathy. He denied skin lesions and gastrointestinal symptoms. He reported claudication, edema, and coldness of his lower extremities. He reported shortness of breath on mild and moderate exertion, as well as fatigue, edema, and weakness. He reported genitourinary symptoms, to include erectile dysfunction, however, he explained that penetration was possible almost all of the time. On examination, the Veteran had normal renal function. There was decreased right and left lower extremity dorsalis pedis pulse, as well as a coolness of such extremities. There was evidence of peripheral edema. There was no evidence of visual impairment or kidney disease. The examiner diagnosed peripheral neuropathy of the lower extremities, and noted that the onset was a complication of the Veteran's diabetes. The examiner diagnosed cardiovascular disease, namely coronary artery disease and hypertension, and noted that such were not a complication of the diabetes, as they predated the Veteran's diagnosis of diabetes. However, the examiner opined that the coronary artery disease and hypertension were worsened by the diabetes. Regarding the effect of the Veteran's diabetes on his occupation, the examiner noted that the effect was significant, as such disorder caused decreased mobility, problems with lifting and carrying, and lack of stamina, as well as increased absenteeism. The examiner further noted that the Veteran's diabetes had a moderate effect on his ability to travel and exercise, and a mild effect on his ability to perform chores and to shop. A private treatment record dated in June 2006 notes the physician's findings of positive telangiectasia of the bilateral lower extremities, as well as signs of diabetic peripheral neuropathy. In his September 2006 statement, the Veteran reported that his diabetic condition was getting worse, to include his vision. A June 2007 VA outpatient record shows the Veteran was referred as a result of his "morbid obesity." The Veteran was provided a specific meal plan and told to take his medication prescribed in order to control his blood sugars. A September 2007 record notes the Veteran's morbid obesity; the assessment included to engage in increased activity through golf or swimming. A September 2007 VA skin disease examination report shows a diagnosis of NLD. The examiner noted that the Veteran's NLD was a rash on the bilateral lower extremities more often found in diabetic patients. The examiner concluded that the Veteran's NLD was "most likely" caused by the service- connected diabetes mellitus, type II. A September 2007 VA peripheral nerves examination report shows a diagnosis of bilateral lower extremity peripheral neuropathy. The examiner opined that it was "at least as likely as not" that the Veteran's current bilateral lower extremity peripheral neuropathy was aggravated by his service-connected diabetes mellitus, type II. A September 2007 VA genitourinary examination report shows that the Veteran reported the onset of erectile dysfunction in 2004, shortly after his diagnosis of diabetes. He reported that he took Viagra for his erectile dysfunction, and had vaginal penetration 50 to 65 percent of the time. He noted increased day-time urination, however, denied incontinence. He reported that he had been unemployed for less than a year because his consultant contract ended. On examination, the examiner noted a normal bladder, urethra, testicles, epididymis, and seminal vesicles examination. There was no evidence of flank or tenderness. The examiner diagnosed erectile dysfunction. A September 2007 VA eye examination report shows the Veteran reported difficulty reading small print for many years. On examination, the Veteran's corrected vision was 20/20, bilaterally. The examiner stated that the Veteran's complaints of loss of vision were related to his refractive presbyopia. The examiner concluded that there were no signs of vision loss due to the Veteran's diabetes mellitus, type II. A September 2007 VA artery and vein examination report shows the Veteran reported intermittent bilateral lower extremity edema, that he felt may also be related to his cardiac condition. Upon examination, the examiner diagnosed peripheral vascular disease. The examiner noted the Veteran's history of coronary artery disease with hyperlipidemia, and stated that it would be mere speculation to opine as to the cause of the Veteran's current peripheral vascular disease. A July 2008 VA heart examination reports shows the Veteran reported that the onset of his current hypertension was in 1991. He further reported that he took medication since such time. Upon examination, the examiner diagnosed hypertension and hypertensive heart disease, and coronary artery disease. The examiner opined that it was "at least as likely as not" that the Veteran's current hypertension and coronary artery disease were aggravated by his diabetes mellitus. A July 2008 VA genitourinary examination report shows the Veteran reported urinary urgency. He reported erectile dysfunction, noting that he took medication, which was effective, as he was able to achieve vaginal penetration with normal ejaculation. On examination, the examiner noted a normal bladder examination. There was no evidence of flank or tenderness. The examiner diagnosed erectile dysfunction. A March 2009 VA treatment record indicates that the Veteran was taking insulin. A September 2009 record shows that the Veteran's laboratory results indicate much improvement in his diabetes mellitus, type II, with an HgA1c of 6.5 percent, as well as normal kidney and liver function. A December 2009 record shows that the Veteran denied vision problems. The examiner noted that there was no evidence of diabetic retinopathy. An April 2010 record shows the Veteran took insulin, byetta, and metformin for his diabetes mellitus, type II. An October 2010 record shows that the Veteran participated in a national weight loss program administered by VA. A December 2010 VA diabetes examination report shows the Veteran reported that he was able to sustain an erection long enough to have intercourse with the use of Viagra or Cialis. He reported shortness of breath on moderate exertion, as well as rare left side chest pain, as a result of his coronary artery disease. He denied diabetic nephropathy and retinopathy. He reported that he had peripheral vascular edema of his bilateral lower extremities, and that he took both insulin and oral medication daily. The Veteran stated that he had episodes of hypoglycemic reactions or ketoacidosis; however, he had never been hospitalized for such. The Veteran reported that he sought treatment at his diabetic care provider monthly or less often. His diet was reported as restricted. He indicated that he was restricted in his ability to perform strenuous activities, such as golf, due to "DOE and fear of hypoglycemia." Upon examination, there was no evidence of visual impairment, kidney disease, or amputation. The examiner diagnosed bilateral lower extremity neuropathy, and stated that it was a complication of the diabetes. The examiner diagnosed coronary artery disease and hypertension, and stated that they were not complications of the Veteran's diabetes, as they predated the onset of his diabetes. The examiner diagnosed erectile dysfunction, and stated that it was a complication of the diabetes. The examiner noted that peripheral edema was present with an unknown etiology. The examiner stated that there were no significant effects of the Veteran's diabetes mellitus and associated complications on the Veteran's daily activities. The examiner also stated that the Veteran was unemployed as per his report, as a result of his contract ending. In a June 2013 addendum report to the December 2010 VA examination report, the December 2013 VA examiner opined that the Veteran's service-connected diabetes mellitus, type, II, did not require the prescribed regulation of activities for its control. The examiner noted that during the December 2010 VA examination, the Veteran stated that he avoided strenuous activity such as golf due to dyspnea and fear of hypoglycemia. In this regard, the examiner explained that such restriction or avoidance was the Veteran's self- regulation due to dyspnea and concern for hypoglycemia. The examiner concluded, that based upon a review of the record, the Veteran was not prescribed regulation of activities (occupational or recreational) as a result of his service-connected diabetes mellitus, type II. As discussed above, the Veteran's service-connected diabetes mellitus, type II, has been assigned an initial 20 percent evaluation. In order to warrant an increased evaluation, the evidence of record must demonstrate that the Veteran's diabetes requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. The evidence of record demonstrates that the Veteran required insulin beginning in March 2009, and that his diet was restricted throughout the pendency of this appeal. During the December 2010 VA examination, the Veteran indicated that he was restricted in his ability to perform strenuous activities, such as golf, due to "DOE and fear of hypoglycemia." However, in the June 2013 addendum, the December 2010 VA examiner found that the Veteran's restriction of activities was essentially self-imposed, due to his own concern for hypoglycemia and dyspnea. The examiner concluded that based upon a review of the record, the Veteran was not prescribed regulation of activities as a result of his diabetes. Indeed, VA outpatient treatment records dated in 2007 include directives from VA healthcare providers to increase activity through golf or swimming. As such, the Board finds that the objective evidence does not confirm that the Veteran's diabetes causes a "restriction of activities." See Camacho, 21 Vet. App. 360, 365. Considering the pertinent evidence of record in light of the criteria detailed above, the Board finds that the criteria for an initial evaluation in excess of 20 percent for the Veteran's diabetes mellitus, type II have not been met during the entire rating period on appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999). There is no medical evidence of record demonstrating that the Veteran must avoid strenuous occupational and recreational activities due to his diabetes mellitus, type II, as required for a 40 percent evaluation under Diagnostic Code 7913. 38 C.F.R. § 4.119. Moreover, as noted above, pursuant to Note (1), Diagnostic Code 7913, separate ratings are assigned for any compensable complication of the Veteran's service-connected diabetes mellitus, type II. All noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119. In this regard, the record demonstrates that the Veteran's service-connected NLD and peripheral neuropathy of the right and left lower extremities are associated with the diabetes mellitus, and are separately evaluated as 10 percent disabling, respectively. Subsequent to the grant of service connection for the aforementioned disorders, neither the Veteran, nor his representative appear to pursue increased evaluations for such disabilities, as their statements and argument have been limited to the diabetic process. The Board finds that a separate compensable evaluation is not warranted for the Veteran's service-connected erectile dysfunction disorder under Diagnostic Code 7913. In this regard, a compensable evaluation is warranted when there is evidence of removal of half or more of the penis; removal of glans; or a penile deformity. 38 C.F.R. § 4.115b, Diagnostic Codes 7520, 7521, 7522 (2013). Based on a review of the record, the Board finds that the Veteran's erectile dysfunction is not manifested by these symptoms. As such, the Veteran's erectile dysfunction is a noncompensable complication that is considered part of the assigned 20 percent evaluation for his diabetes mellitus, type II. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Nevertheless, special monthly compensation based upon loss of use of a creative organ has been granted as a result of his erectile dysfunction. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2013). Based on a review of the record, the Board finds that there is no objective evidence of diabetic retinopathy. The September 2007 VA examiner stated that the Veteran's complaints of loss of vision were related to his refractive presbyopia. The examiner concluded that there were no signs of vision loss due to the Veteran's diabetes mellitus, type II. A December 2009 VA record shows the Veteran denied vision problems; the examiner noted that there was no evidence of diabetic retinopathy. During the December 2010 VA examination, the Veteran denied diabetic retinopathy, and on examination, the examiner noted that there was no evidence of visual impairment. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2013). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2013). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Id. at 115. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. See VAOPGCPREC 6-96; 61 Fed. Reg. 66749 (1996) (when service-connected disability affects employment "in ways not contemplated by the rating schedule[,]" § 3.321(b)(1) is applicable). The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the 20 percent evaluation for diabetes mellitus, type II, inadequate. The Veteran's service-connected diabetes mellitus, type II, is evaluated as an endocrine system disorder pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, the criteria of, which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. The Veteran's diabetes mellitus, type II, requires medication, insulin injections and a restricted diet, but not a regulation of his activities. The diabetes is also manifested by the noncompensable complication of erectile dysfunction and other separately rated compensable complications. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptomatology and treatment are congruent with the disability picture represented by a 20 percent evaluation. Ratings in excess of 20 percent are provided for certain manifestations and treatment of diabetes mellitus, type II, but the medical evidence demonstrates that those manifestations were not present throughout the pendency of this appeal. The criteria for a 20 percent evaluation reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt. However, as discussed above, as the preponderance of the evidence is against an initial evaluation in excess of 20 percent for the Veteran's diabetes mellitus, type II at any time during the appeal period, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Fenderson, 12 Vet. App. at 126. ORDER An initial evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs