Citation Nr: 1334123	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-32 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II.


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 



INTRODUCTION

The Veteran served on active duty with the United States Army from May 1968 to May 1970, which included approximately one year of service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Newark, New Jersey, Regional Office (RO) of the United States Department of Veterans Affairs (VA).  

In November 2012, the Board remanded the claim for further development.


FINDING OF FACT

Diabetes mellitus, type II, does not require regulation of the Veteran's activities.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A pre-adjudicatory December 2009 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  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 v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran has submitted letters from his private treatment providers; however, he has not submitted any treatment records from these providers, and he failed to return completed release forms allowing VA to request those records on his behalf.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  VA's "'duty to assist is not always a one-way street'; nor is it a blind alley." Olson v. Principi, 3 Vet. App. 480 (1992) quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  The Veteran has not identified, and the record does not suggest, the existence of any other treatment records relevant to the appeal.  Likewise, the Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in 2009 and 2012, and a VA opinion regarding the etiology of the Veteran's venous stasis was obtained in 2012.  The Veteran has not argued, and the record does not reflect, that these examinations and opinion were inadequate for rating purposes.  38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  The examinations include findings relevant to the rating criteria, and the medical opinion is unequivocally stated and supported by a sufficient rationale.

There is no indication in the record that any additional evidence, relevant to the issue 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/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Increased Rating Claim

The Veteran contends that the current severity of his diabetes mellitus entitles him to a higher disability rating, as his diabetes mellitus requires him to follow a restricted diet, take insulin, and regulate his activities.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

While the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of a veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran is currently assigned a 20 percent disability rating for his diabetes mellitus pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  Diagnostic Code 7913 provides that a 20 percent rating is warranted when the treatment of diabetes mellitus requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet.  38 C.F.R. § 4.119, Diagnostic Code 7913.  A 40 percent rating is assigned when the treatment of diabetes mellitus requires insulin, a restricted diet, and regulation of activities.  Id.   

"Regulation of activities," for purposes of evaluation of diabetes mellitus, refers to the need to monitor, restrict, or modify activity, particularly strenuous activity, in order to maintain blood sugar control.  Appropriate findings would relate to the need to monitor blood sugar before, during, or after activity; to eat sugary foods; to take additional medication; or directives to not engage in strenuous activity due to blood sugar levels.  38 C.F.R. § 4.119, Diagnostic Code 7913.

The Veteran has asserted that his diabetes mellitus requires regulation of his activities.  However, as a finding that the severity of diabetes mellitus requires regulation of activity requiring the need to regulate fluctuating blood sugar levels, as outlined above; the finding is a medical determination.  As the Veteran is a lay person, with no reported or known medical training, the Veteran's lay assertions that his diabetes mellitus requires him to regulate his activities are not competent evidence.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues).  Accordingly, the Veteran's reports that his diabetes mellitus requires regulation of his activities is accorded no probative value.  Competent medical evidence is required to demonstrate regulation of activities.
 
The medical evidence of record includes a November 2009 statement from the Veteran's treating physician, in which the physician states that the Veteran's diabetes mellitus requires treatment with insulin injections, and that the Veteran should follow a diet recommended by the American Diabetes Association (ADA) and avoid prolonged standing due to his venous stasis.

The Veteran was afforded a VA diabetes mellitus examination in December 2009, at which time he reported following a restricted diet and taking both an oral hypoglycemic medication and insulin injections to treat his diabetes mellitus.  The examiner stated that the Veteran's diabetes mellitus did not require restriction of his activities and that the Veteran did not have any complications or functional impairment related to his diabetes mellitus.

In a letter authored in July 2010, the Veteran's treating physician reiterated that the Veteran requires insulin injections to treat his diabetes mellitus, should follow an ADA-recommended diet, and must regulate his activities, to include avoiding prolonged standing, due to his venous stasis.

A December 2010 statement authored by the Veteran's treating podiatrist states that since 2003, the podiatrist has provided regular diabetic foot care to the Veteran by treating his painful toenails.

Pursuant to the Board's remand directives, the Veteran was afforded another VA diabetes mellitus examination in December 2012 in order to ascertain the current severity of his diabetes mellitus and determine the potential relationship between his venous stasis, which requires regulation of activities, and the service-connected diabetes mellitus.  The Veteran reported that he treated his diabetes mellitus with a restricted diet, an oral hypoglycemic agent, and by administering insulin injections daily.  

After examining the Veteran and reviewing the claim file, the examiner stated that the Veteran did not require regulation of activities to treat diabetes mellitus, noting that the Veteran reported walking for 30 minutes per day.  The examiner further determined that the Veteran had no complications of diabetes mellitus, to include venous stasis.  In support of this finding, the examiner stated that diabetes mellitus does not cause either venous stasis or venous insufficiency, nor does diabetes mellitus aggravate venous stasis, as changes in blood sugar do not affect venous stasis.  Moreover, the examiner stated that there was no evidence to suggest that the Veteran's venous stasis had been worsening or affected by his diabetes mellitus.

This medical opinion concluding that neither the Veteran's diabetes mellitus, nor any condition related to or aggravated by his diabetes mellitus, requires regulation of his activities, is accorded great probative value, as the opinion is unequivocal, predicated on an examination of the Veteran and his medical history, and supported by a detailed rationale.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

As the probative medical evidence of record fails to reflect that the Veteran's diabetes mellitus, or any condition related to his diabetes mellitus, requires regulation of his activities, the schedular criteria for a rating in excess of 20 percent for diabetes mellitus have not been met.  

With regard to whether referral for extraschedular consideration is warranted, the evidence shows that the Veteran's service-connected diabetes mellitus requires treatment by both insulin and an oral hypoglycemic agent, as well as a restricted diet; the rating criteria considered in this case expressly consider the severity of the Veteran's diabetes mellitus, as evidenced by his prescribed treatment.  The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for service-connected diabetes mellitus is adequate, and referral is not required.  Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1).

As the Veteran reported that he was employed during his 2009 VA examination, and the VA examiner who conducted the 2012 VA examination stated that diabetes mellitus does not impact his ability to work, a claim for a total disability rating based on individual unemployability has not been raised as part and parcel of the instant increased rating claim.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).




ORDER

A disability rating in excess of 20 percent for diabetes mellitus, type II, is denied.



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs