Citation Nr: 1330246 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 12-30 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected type 2 diabetes mellitus. ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for type 2 diabetes mellitus and assigned a 10 percent disability rating effective September 2010. The case was subsequently transferred under the jurisdiction of the VA RO in Atlanta, Georgia, where the Veteran currently resides. FINDINGS OF FACT 1. The Veteran's type 2 diabetes mellitus has required management with a hypoglycemic agent taken either orally or by injection and a restricted diet. 2. The Veteran's service-connected diabetes mellitus is not manifested by a need for daily insulin, the need for regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations, or twice a month visits to a diabetic care provider. CONCLUSION OF LAW The criteria for an initial disability rating of 20 percent, but no more, for type 2 diabetes mellitus, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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 claimant 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 claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran has been provided the requisite notice with respect to his claim for service connection for diabetes mellitus by a letter dated September 2010 which was prior to the initial RO rating decision granting service connection for the claimed disability. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91. Accordingly, once service connection for diabetes mellitus was granted and the disability rating and effective date was assigned, no further notice is required. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing 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, 444 F.3d at 1333-34. VA has obtained available private medical records; service treatment records; VA examination reports, assisted the Veteran in obtaining evidence; and, afforded him the opportunity to present written statements and evidence. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the evidence of record and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran was afforded VA examinations in conjunction with his claim for service connection in March 2011 and again in November 2012. While the second examiner did not have access to the claims file, the examination reports addressed the specific criteria necessary to rate the service-connected diabetes mellitus and is otherwise adequate. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Generally, 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. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). 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 for type 2 diabetes mellitus as a result the Veteran's exposure to herbicides during active service in Vietnam was granted, and a 10 percent disability rating was assigned, effective September 1, 2010. Medical records from the Veteran's private physician dated from 2007 to 2010 were submitted with respect to his claim for service connection. These records reveal the diagnosis of diabetes mellitus. These records also reveal that various methods for treating the Veteran's diabetes mellitus were tried before the optimum treatment was found. For example, a July 2007 record reveals that the Veteran was prescribed Avandamet, which is an oral hypoglycemic medication. An October 2007 treatment record indicates that Glucophage and Glucotrol, also oral hypoglycemic medications, were prescribed. A June 2008 treatment record indicates that another different oral medication was tried in an effort to control the Veteran's diabetes mellitus. A July 2009 treatment record reveals that the Veteran's diabetes mellitus medication was switched to Levemir Flexpen, a form of insulin in an auto injector. An October 2010 record reveals that the Veteran was switched to a different injectable medication in an effort to control his diabetes mellitus. At a March 2011, VA examination, the Veteran reported diabetes mellitus had been diagnosed by a private physician; and that he also stated that he previously was on a variety of medications, including oral hypoglycemic agents and insulin, to treat the disorder, but that they had recently been discontinued because he was experiencing side effects. He reported that he was presently on a limited diet and exercise. He indicated that his diabetes mellitus had not resulted in any hypoglycemic reactions, the need for hospitalization, or the need for regulation of activities. No other complications of diabetes mellitus were noted by the examining physician. In a November 2012 VA examination, the examiner noted a diagnosis of type 2 diabetes mellitus dating back to 2001. The Veteran required treatment with Victoza, and injectable, non-insulin, medication since January 2012. He did not require regulation of activities, and visited a diabetic care provider less than two times per month. No episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization were reported. Weight loss and strength loss due to diabetes mellitus were noted. No other complications related to diabetes mellitus were identified on examination. The examiner indicated that the Veteran's service-connected diabetes mellitus did not result in any functional or occupational impairment. The Veteran's service-connected type 2 diabetes mellitus is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. A rating of 10 percent is assigned for diabetes mellitus that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities. A 60 percent disability rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities, and involving episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or visits to a diabetic care provider twice a month plus complications that would not be compensable if separately evaluated. A rating of 100 percent is assigned for diabetes mellitus requiring more than one daily injection of insulin; a restricted diet; and regulation of activities, avoidance of strenuous occupational and recreational activities; and involving 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 provides that complications of diabetes mellitus are to be evaluated 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, Note (1). The medical evidence of record does not reveal the presence of any complications of the Veteran's diabetes mellitus. Accordingly, additional disability ratings under other diagnostic codes are not warranted. The Veteran's service-connected type 2 diabetes mellitus is rated as 10 percent disabling from September 1, 2010, the effective date of service connection, until the present. The evidence of record establishes that the Veteran's diabetes mellitus was treated with a restricted diet and exercise. However, private medical records reveal that a variety of medications were prescribed in an effort to control and treat his diabetes mellitus, including insulin and oral hypoglycemic agents. As of September 2010, the Veteran was prescribed insulin, but was non-compliant with the medication because of psychiatric side effects, which included depression and violent thoughts. At the time of the March 2011 VA examination, the Veteran was not on any medication to treat his diabetes mellitus, because of his medication non-compliance. The examiner noted that the diabetes mellitus was "not well controlled," but then also indicated that the level of disability was only "mild." The November 2012 VA examination report indicates that the Veteran was prescribed Victoza, and injectable, non-insulin, medication since January 2012, to treat his diabetes mellitus. Victoza is not insulin, nor is it an oral hypoglycemic agent. Rather, it is an injectable medication used to treat the Veteran's service-connected diabetes mellitus. The Board finds that the need for an injectable hypoglycemic agent more nearly approximates the criteria contemplated by the 20 percent disability rating. 38 C.F.R. § 4.7 (2013). The evidence or record establishes that the service-connected diabetes mellitus has required treatment with prescribed medication, whether the Veteran was compliant or not, effective since the date of service connection. Accordingly, the criteria for the assignment of an initial 20 percent disability rating for type 2 diabetes mellitus have been met. There is no evidence of record showing that the service-connected diabetes mellitus results in the need for regulation of activities, episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations, or twice a month visits to a diabetic care provider. Accordingly, the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the Veteran's service connection type 2 diabetes mellitus for any period of time covered by this appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. 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), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). 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. Thun, 22 Vet. App. 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. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected diabetes mellitus is evaluated under Diagnostic Code 7913, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by the disability at issue. The 20 percent rating assigned herein reasonably describes the disability level and symptomatology that are the result of the service-connected diabetes mellitus, to include management with a hypoglycemic agent and a restricted diet. Disability ratings in excess of 20 percent are provided for in the Rating Schedule for certain manifestations, but the medical evidence demonstrates that those manifestations are not present in this case. Consequently, the Board concludes that the schedular evaluation in this is adequate and that referral of the issue of entitlement for initial rating in excess of the 20 percent assigned herein for diabetes mellitus is not required. See 38 C.F.R. § 4.119, Diagnostic Code7913; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). In reaching its decision, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against an initial rating in excess of 20 percent for type 2 diabetes mellitus for any period of time covered by this appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Fenderson, 12 Vet. App. at 126. ORDER An initial disability rating of 20 percent for type 2 diabetes mellitus is granted , subject to the law and regulations governing the payment of monetary awards. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs