Citation Nr: 1331532 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 07-20 019 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection a respiratory disability to include lung cancer and chronic obstructive pulmonary disease, including as secondary to service-connected disability and to exposure to exposure to Agent Orange. 2. Entitlement to a rating in higher than 20 percent for diabetes mellitus, type 2, with erectile dysfunction and diabetic retinopathy of the left eye. 3. Entitlement to an initial rating higher than 10 percent for peripheral neuropathy of the right lower extremity before February 8, 2013. 4. Entitlement to an initial rating higher than 10 percent for peripheral neuropathy of the left lower extremity before February 8, 2013. 5. Entitlement to an initial rating higher than 40 percent for peripheral neuropathy of the right lower extremity from February 8, 2013. 6. Entitlement to an initial rating higher than 40 percent for peripheral neuropathy of the left lower extremity from February 8, 2013. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1968 to May 1971. He served in the Republic of Vietnam from July 21, 1968, to March 5, 1970. This matter is before the e Board of Veterans' Appeals (Board) on appeal of raring decisions in August 2005 and in December 2006 of a Department of Veterans Affairs (VA) Regional Office (RO). In a decision in May 2011, the Board denied service connection for lung cancer and for special monthly compensation based on the need for aid and attendance for another person. The Board granted service connection for coronary artery disease and remanded the claims for increase for diabetes mellitus. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order in January 2012, pursuant to a Joint Motion, the Court vacated that part of the Board's decision denying the claim for service connection for lung cancer. The Court did not disturb that part of the Board's decision denying the claim for aid and attendance. In December 2012, the Board remanded the case for further development. While on appeal in a rating decision in May 2013, the RO increased the ratings for peripheral neuropathy of the right and left lower extremities to 40 percent, effective February 8, 2013. In May 2013, the Veteran's representative raised the claim for a total disability rating for compensation based on individual unemployability before November 2, 2007, which is referred to the RO for appropriate action. The claim of service connection for a respiratory disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. During the pendency of the appeal, diabetes mellitus with erectile dysfunction and diabetic retinopathy of the left eye has been manifested by daily use of oral medication and insulin and with a restricted diet without evidence of a need for regulation of activities, episodes of ketoacidosis or hypoglycemic reactions. 2. Before February 8, 2013, peripheral neuropathy of the right lower extremity was no more than mildly disabling. 3. Before February 8, 2013, peripheral neuropathy of the left lower extremity was no more than mildly disabling. 4. From February 8, 2013, peripheral neuropathy of the right lower extremity is manifest by symptoms analogous to no more than moderately severe incomplete paralysis of the sciatic nerve with no evidence of muscle atrophy. 5. From February 8, 2013, peripheral neuropathy of the left lower extremity is manifest by symptoms analogous to no more than moderately severe incomplete paralysis of the sciatic nerve with no evidence of muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for diabetes mellitus with erectile dysfunction and diabetic retinopathy of the left eye are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 2. The criteria for an initial rating higher than 10 percent for peripheral neuropathy of the right lower extremity before February 8, 2013, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). 3. The criteria for an initial rating higher than 10 percent for peripheral neuropathy of the left lower extremity before February 8, 2013, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). 4. The criteria for an initial rating higher than 40 percent for peripheral neuropathy of the right lower extremity from e February 8, 2013, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2012). 5. The criteria for an initial rating higher than 40 percent for peripheral neuropathy of the left lower extremity from February 8, 2013, have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.123, 4.124, 4.124a; Diagnostic Code 8520 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to the effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice on the underlying claims of service connection for peripheral neuropathy of the right and left lower extremities. Where, as here, service connection has been granted and the initial ratings have been assigned, the claims of service connection have been more than substantiated, the claims has been proven, thereby rendering 38 U.S.C.A. §5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for initial higher ratings. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). On the claim for increase for diabetes mellitus, the RO provided pre-adjudication notice by letter in August 2006. The notice included the type of evidence needed to substantiate a claim for increase, namely, evidence that the symptoms had increased and the effect on employment. The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice.); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records, VA records, and private medical records. The Veteran was afforded VA examinations in November 2006, in January 2013, and in February 2013. As the examination reports and opinions are based on a review of the Veteran's history and fully addressed the rating criteria so that the Board's review is a fully informed one, the examination reports are adequate to decide the claims. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the medical history and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Diabetes Mellitus with Erectile Dysfunction and Retinopathy of the Left Eye The diabetes mellitus is currently rated 20 percent under Diagnostic Code 7913. The criteria for the next higher rating, 40 percent, are insulin, a restricted diet, and regulation of activities. In addition, compensable complications of diabetes mellitus are rated separately unless the complications are of the criteria for a 100 percent schedular rating. "Regulation of activities" is defined as when a Veteran is prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996)(defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The erectile dysfunction and diabetic retinopathy of the left eye are currently included as noncompensable complications of diabetes mellitus under Diagnostic Code 7913. Erectile dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7522. The criteria for a compensable rating are penile deformity with loss of erectile power. Retinopathy is rated under 38 C.F.R. § 4.79, Diagnostic Code 6006. Eye disabilities rated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. 38 C.F.R. § 4.79. Under the General Rating Formula based on incapacitating episodes, the following ratings apply: a 10 percent rating is warranted for retinopathy with incapacitating episodes having a total duration of at least 1 week, but less than 2 weeks, during the previous 12 months. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. As for visual impairment, a noncompensable rating is warranted for impairment of central visual acuity when the corrected visual acuity is 20/40 or better in both eyes and a 10 percent compensable rating is warranted when the corrected visual acuity is 20/50 in one eye and 20/40 or worse in the other eye. 38 C.F.R. § 4.79, Diagnostic Code 6066. In November 2006, on VA examination, the Veteran was on oral medication, but he did not require insulin and he was on a restricted diet. The complications of diabetes were erectile dysfunction and peripheral neuropathy. In February 2007, diabetes was uncontrolled with metabolic syndrome and insulin therapy was instituted. In September 2008, the assessment was asymmetric retinopathy of the left eye consistent with diabetic retinopathy. At the time, the Veteran had no vision complaints. VA and private medical records show that the Veteran was on both oral medication and insulin, as well as a restricted diet without regulation of his activities. In December 2012, it was noted that the Veteran's activities were not newly restricted. In January 2013 on a VA eye examination, left eye visual acuity was greater than 20/40. The VA examiner stated that the Veteran had not had incapacitating episodes and that there was no decrease in visual acuity or other visual impairment. The right eye is not service-connected. As left eye visual acuity was 20/40 or greater, the criteria for a separate compensable disability under Diagnostic Code 6066 is not met. In February 2013 on VA examination, there was no evidence of a penile deformity. In the absence of penile deformity, the criteria for a compensable rating are under Diagnostic Code 7522 are not met. In February 2013 on VA examination, it was reported that diabetes was managed by a restricted diet and insulin. The Veteran did not require regulation of activities. The Veteran had sought diabetic care less than 2 times a month for episodes of ketoacidosis or hypoglycemic reactions. In the last 12 months he had experienced no episodes of ketoacidosis or hypoglycemia requiring hospitalization. He had had no progressive unintentional weight loss or progressive loss of strength. In the absence of medical evidence of regulation of activities, the criteria for the next higher rating under Diagnostic Code 7913 are not met. For these reasons, the preponderance of the evidence is against the claim for a rating higher than 20 percent for diabetes mellitus, type 2, with erectile dysfunction and diabetic retinopathy of the left eye. Peripheral Neuropathy Diseases of the peripheral nerves are rated under 38 C.F.R. § 4.124a. Peripheral neuropathy is rated as analogous to impairment of the sciatic nerve under Diagnostic Code 8520. Under Diagnostic Code 8520, the criterion for a 10 percent rating is mild incomplete paralysis. The criterion for a 20 percent rating is moderate incomplete paralysis. The criterion for a 40 percent rating is moderately severe incomplete paralysis. The criterion for a 60 percent rating is severe incomplete paralysis with marked muscular atrophy. When the involvement is wholly sensory, the rating should be for mild, or at most, for moderate nerve impairment degree. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A Rating before February 8, 2013 In November 2006 on VA examination, the Veteran complained of tingling and numbness in his feet. Physical examination revealed decreased sensitivity in the right foot and in the left foot. In October 2008, there was decreased sensation to the feet with monofilament testing. In January 2009, the Veteran had no active neuropathy. Although the Veteran seeks higher ratings, there is no objective evidence of any more than intermittent sensory involvement before February 8, 2013, indicative of no more than mild impairment. The preponderance of the evidence is against the claim for an initial rating higher than 10 percent for peripheral neuropathy of the right and left lower extremities before February 8, 2013. From February 8, 2013 On VA neurological examination on February 8, 2013, the Veteran stated that he had difficulty walking long distances, standing for long periods of time and going up and down stairs. The VA examiner reported that the Veteran had severe intermittent pain and severe numbness in the lower extremities. There was also decreased sensation to light touch in the lower extremities below the knee, and decreased left leg sensation to light touch above the knee. There was also decreased sensation to vibration in both lower extremities. There was no evidence of muscle atrophy. The VA examiner stated that the Veteran had moderately severe incomplete paralysis of the sciatic nerve in the lower extremities. Although the Veteran is seeking higher initial ratings, the objective evidence of record fails to show severe incomplete paralysis with marked muscular atrophy of either lower extremity to warrant a rating higher than 40 percent from February 8, 2013. The preponderance of the evidence is against the claims for initial ratings higher than 40 percent for peripheral neuropathy of the right and left lower extremities since February 8, 2013. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the degrees of the disabilities are encompassed by the Rating Schedule and the assigned schedule ratings are, therefore, adequate and no referral to extraschedular ratings is required under 38 C.F.R. § 3.321(b)(1) . In other words, the rating criteria reasonably describe diabetes mellitus with complications of erectile dysfunction, left eye retinopathy, and peripheral neuropathy under Diagnostic Codes 7913, 7522, 6066, 8520. ORDER A rating higher than 20 percent for diabetes mellitus, type 2, with erectile dysfunction and diabetic retinopathy of the left eye is denied. An initial rating higher than 10 percent for peripheral neuropathy of the right lower extremity before February 8, 2013, is denied. An initial rating higher than 10 percent for peripheral neuropathy of the left lower extremity before February 8, 2013, is denied. An initial rating higher than 40 percent for peripheral neuropathy of the right lower extremity from February 8, 2013, is denied. An initial rating higher than 40 percent for peripheral neuropathy of the left lower extremity from February 8, 2013, is denied. REMAND On the claim of service connection a respiratory disability to include lung cancer and chronic obstructive pulmonary disease, including as secondary to service-connected disability and to exposure to exposure to Agent Orange, in May 2013, the Veteran's representative raised the claim of service connection for chronic obstructive pulmonary disease to include as secondary to service-connected coronary artery disease and diabetes mellitus. As the scope of the Veteran's claim may also include other pulmonary conditions that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record, the Board has characterized the claim of service connection to include chronic obstructive pulmonary disease. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In order to ensure procedural due process, the claim is REMANDED for the following action: Ensure VCAA compliance with the duty to notify and the duty to assist on the claim of service connection for chronic obstructive pulmonary disease to include as secondary to service-connected coronary artery disease and diabetes mellitus. After the development, adjudicate the claim, if the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs