Citation Nr: 1334330 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-39 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from September 1967 to September 1973. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in January 2012. This matter was originally on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. FINDING OF FACT At no time during the appeal period has probative evidence demonstrated that the Veteran's diabetes mellitus has required regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matter Pursuant to the Board's January 2012 Remand, the Appeals Management Center (AMC) requested that the Veteran identify health care providers who had treated him since July 2009, it scheduled him for a VA examination to determine the severity of his diabetes mellitus, it readjudicated the claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and it issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's January 2012 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in March 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) Here, the Board has found no medical evidence of record that would warrant a staged rating for this increased rating claim. There are no identifiable periods of time, since the claim was presented, during which this disorder has been shown to be disabling to a degree that would warrant a 40 percent disability rating, and thus higher "staged ratings" are not warranted. The Veteran's service-connected diabetes mellitus is now rated as 20 percent disabling pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating for diabetes mellitus is assigned when the disorder requires insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. "Regulation of activities" has been defined as the situation where the Veteran has been 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). Service connection has been established for peripheral neuropathy of the extremities as well as erectile dysfunction, secondary to the diabetes mellitus, and these disabilities have been separately rated. As such, peripheral neuropathy and erectile dysfunction may not be considered in the evaluation of the service-connected diabetes mellitus. 38 C.F.R. § 4.14; see also 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). In addition, special monthly compensation has been granted for loss of use of a creative organ. The Board has reviewed the evidence of record and finds no support for the assignment of the next-higher 40 percent evaluation for any portion of the rating period on appeal. The Veteran underwent a VA examination in December 2007 at which time he reported hypoglycemic reactions every three months. He denied episodes of ketoacidosis, as well as any hospitalizations for hypoglycemic reactions. He followed a diabetic diet, and used an insulin pump with humilog insulin six times a day. He had visits to his diabetic care provider every three months. The examiner found no functional impairment due to diabetes mellitus. The Veteran also underwent a VA examination in February 2012 at which time he reported needing insulin more than once a day, and that his visits to his diabetic care provider occurred less than two times per month. He denied any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions, and no progressive unintentional weight loss attributable to diabetes mellitus. The examiner indicated that the Veteran did not require regulation of activities as part of the medical management for diabetes mellitus. There is no dispute that the Veteran requires insulin and a restricted diet to control his diabetes mellitus; however, the evidence of record fails to demonstrate that his diabetes requires a regulation of activities. 38 C.F.R. § 4.119. The Board acknowledges the Veteran's contention that his treating physician advised restriction of activities. As noted above, "regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. In this case, in June 2008, VA received a letter from the Veteran's treating physician indicating that his diabetes required constant monitoring and a "regular daily routine of activities to avoid any sudden drop in blood sugars." The physician stated that "the only way to control this condition and to avoid hypoglycemic reactions was to routinely have the same type of activity, lifestyle and eating pattern." The Veteran was not advised to avoid strenuous activity. The Board notes that private medical records indicate that the Veteran's treating physician noted "hypoglycemia seen with yard work" and "low blood sugar after chopping wood;" but instead of requiring the Veteran to restrict these activities, adjustment of temporary basal rates during exercise and sedentary days was discussed. The Board acknowledges that between August and December 2006, the Veteran experienced numerous episodes of hypoglycemia such that 911 was called at least four times. For a higher evaluation, however, in addition to episodes of hypoglycemic reactions requiring hospitalizations and regulation of activities is required. On VA examination, the Veteran has specifically denied hospitalizations for hypoglycemic reactions. For the entirety of the appeal period, the Veteran has attempted to control his diabetes with a combination of insulin and restricted diet. VA and private treatment records show that he is seen for routine and regular maintenance of his condition; however, no VA or private treatment records indicate that the Veteran's diabetes required him to avoid any strenuous activity. Given this, and in light of the VA examinations which clearly indicated that a regulation of activities was not required, the Board concludes that the Veteran's disability picture does not most nearly approximate the next-higher 40 percent evaluation under Diagnostic Code 7913 during any portion of the appeal period. See Hart, 21 Vet. App. at 505. The Board has also considered whether a separate evaluation for any compensable complication of the Veteran's diabetes is warranted pursuant to Note (1) following Diagnostic Code 7913 which instructs the rater to 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. At the January 2012 VA examination, the examiner noted that the Veteran had diabetic peripheral neuropathy and erectile dysfunction. These are rated separately. He did not have diabetic nephropathy, renal dysfunction, diabetic retinopathy, a diabetic cardiac disorder, hypertension, renal disease, peripheral vascular disease, eye conditions other than retinopathy, or any other condition secondary to diabetes mellitus. As such, he is not entitled to any other separate compensable evaluation as he does not any other complication of his diabetes mellitus. As such, the preponderance of the evidence is against entitlement to an evaluation in excess of 20 percent for the Veteran's diabetes mellitus at any time during the appeal period. An extraschedular rating is a component of an increased rating claim. Barringer v. Peake, 22 Vet. App. 242 (2008). The threshold factor for extraschedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). If so, factors for consideration in determining whether referral for an extraschedular rating is warranted include marked interference with employment or frequent periods of hospitalization that indicate that application of the regular schedular standards would be impracticable. Thun, citing 38 C.F.R. § 3.321(b)(1) (2013). In the present case, the Board finds no evidence that the Veteran's service-connected diabetes mellitus presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The criteria pertaining to diabetes mellitus in the Rating Schedule focus on requirements of insulin, restricted diet, and regulation of activities. As discussed above, the symptomatology set forth in the rating schedule describes the Veteran's current disability picture. Thus, the schedular criteria adequately compensate for any loss in earning capacity, and referral for extraschedular consideration is not warranted. Id. The Board acknowledges the judicial holding in Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that decision, the United States Court of Appeals for Veterans Claims held that a request for a total rating based on individual unemployability, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a total disability evaluation based on individual unemployability due to service connected disorders is warranted as a result of that disability. The Board acknowledges that in August 2006, the Veteran had a hypoglycemic reaction episode at work at which time emergency medical services personnel were called who treated him at the scene. In a September 2006 note, the Veteran's employer indicated that since he had been employed, he had had several (approximately seven instances) episodes with his behavior indicating that this blood sugar had not been what it should be and on four of these occasions, 911 had been called. In September 2006, the Veteran was examined for the purpose of determining the appropriate level of employment duties at which time the examining physician opined that he believed that the Veteran was at significant risk for symptomatic hypoglycemia which represented a risk of injury to himself and others while performing his job-related duties including driving. Time off from work to adjust his insulin was suggested. In October 2006, that same physician opined that the Veteran should not return to his duties for at least another four weeks. In November 2006, the opinion was that the Veteran could return to his duties at that time as recommended by his private physician. Although the Veteran took time off from work in 2006 while his insulin was being regulated, this is not indicative that that he was unable to maintain gainful employment. The evidence indicates that the Veteran's duties included working alone, driving company vehicles to travel around a coverage area to perform maintenance duties, operating power tools, and climbing ladders. In the September 2006 independent medical evaluation report, the physician stated, "Clearly, there is no medical issue that represents the end of his employment but rather taking the time now to adjust his insulin will likely yield a healthier, safer employee." At the December 2007 VA examination, the VA examiner opined that there were no functional impairments secondary to diabetes mellitus; and at the January 2012 VA examination, the examiner opined that the Veteran's diabetes mellitus and associated complications did not impact his ability to work. As such, there is no evidence of record that reasonably raises a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. ORDER Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs