Citation Nr: 1335420 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-30 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan. THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to September 1969, including service in the Republic of Vietnam from March to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the Veteran's claim for an increased rating for his diabetes mellitus, Type 2. The Board also notes that in December 2011 the Veteran requested a hearing before Decision Review Officer at the RO. In July 2012, the RO notified the Veteran that he was scheduled for a hearing for August 2012. The Veteran, however, failed to report. Therefore, the Board deems this request withdrawn. The issue of entitlement to a TDIU was not certified for appeal. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, however, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the evidence suggests that he may be unemployable due to symptoms related to his diabetes mellitus, the issue of entitlement to a TDIU has been raised and must be considered. The Board notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. The Veteran's claims seeking an evaluation in excess of 40 percent throughout the appeal and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's diabetes mellitus requires at least insulin, a restricted diet and a regulation of activities. CONCLUSION OF LAW The criteria for at least a 40 percent rating for diabetes mellitus have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board increases the rating for the Veteran's diabetes mellitus to 40 percent and remands that aspect of his appeal that seeks an evaluation in excess of 40 percent, to include entitlement to a TDIU, for further development and adjudication. As such, no discussion of VA's duty to notify and assist is necessary. The Board has reviewed the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence of record be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file actually shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that his diabetes mellitus warrants a 60 percent rating because the disability requires insulin, a restricted diet and a regulation of activities, and is also productive of hypoglycemic reaction and cites a September 2011 report prepared by his treating VA examiner in support of his claim. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a claimant may experience distinct degrees of disability that result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis below, therefore, considers the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service connection for diabetes mellitus was granted in a November 2006 rating decision and an initial 20 percent rating was assigned under Diagnostic Code 7913. Under Diagnostic Code 7913, a rating of 40 percent rating requires insulin, a restricted diet, and regulation of activities. A rating of 60 percent is warranted if there is a requirement of insulin, restricted diet, and regulation of activities and 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. The highest possible rating of 100 percent is assigned when there is a requirement of more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) and 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, DC 7913. Note 1 to Code 7913 indicates that noncompensable complications are considered part of the diabetic process. In a September 2011 report, the Veteran's treating VA examiner stated that the Veteran controls his diabetes by insulin injections twice a day, experiences hypoglycemic reactions during exercising or increased activity and high blood sugar if he eats unrestricted food. Thus, he uses insulin to treat the disability and follows a restricted diet and regulates his activities due to the disease, satisfying the criteria for a 40 percent rating under Diagnostic Code 7913. In an April 2009, the Veteran similarly described how his diabetes restricts his ability to function and his ability to work as a school bus driver because state and federal law prohibit diabetics from interstate transportation of passengers. The Board finds that at least a 40 percent rating under Diagnostic Code 7913 is warranted throughout the appeal and in the remand below directs further development to determine whether a rating in excess of 40 percent is warranted throughout the appeal. ORDER Subject to the law and regulations governing payment of monetary benefits, a rating of 40 percent for type II diabetes mellitus is granted. REMAND Having determined that the Veteran's diabetes mellitus warrants at least a 40 percent rating throughout the appeal, in light of the outstanding medical records relating to the Veteran's treatment of this condition since 2010, which are not physically of record in the paper folder or available via Virtual VA or VBMS, this case must be remanded for further development. As noted above, the Veteran's treating VA provider indicated in September 2011 that the Veteran's diabetes mellitus and the associated complications such as neuropathy, retinopathy, gastroparesis and hypertension have worsened since the most recent examination, which was conducted in July 2009. The Veteran and his representative similarly report that the Veteran's diabetes mellitus has worsened, and consequently he is entitled to a higher disability rating. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his diabetes mellitus. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. As to the TDIU aspect of his claim, the Board observes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes the criteria required for TDIU. 2. Obtain VA treatment records, physically or electronically, from the Grand Rapids VA Medical Centers dated since June 2009. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his diabetes and associated symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his diabetes mellitus Type 2 and hypertension. The entire claims file (paper and electronic), including any newly obtained treatment records, must be made available to and reviewed by the examiner(s) and all necessary tests be conducted. The examiner should report all manifestations of the diabetes mellitus Type 2. In doing so, the examiner must state whether the Veteran's diabetes mellitus is manifested by 1) episodes of ketoacidosis, 2) progressive loss of weight and strength, and/or 3) hypoglycemic reactions requiring a) one or two hospitalizations per year, b) at least three hospitalizations per year, c) twice a month visits to a diabetic care provider, and/or d) weekly visits to a diabetic care provider. The examiner must indicate whether the Veteran has any neurological impairment affecting his right and/or left lower extremity as well as his right and/or left upper extremity, and if so, discuss the nature, extent and severity of that impairment. If possible, the examiner should state whether the disability caused thereby should be described as equating to mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. The examiner should also address whether it at least as likely as not the Veteran's hypertension is related to or had its onset in service, or within one year of separation or whether it is at least as likely as not that the Veteran's hypertension was either (a) caused by, or (b) aggravated by, his service-connected diabetes mellitus Type 2. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 5. Schedule the Veteran for an appropriate VA examination to determine the current severity of his psychiatric disability. The entire claims file (paper and electronic), including any newly obtained treatment records, must be made available to and reviewed by the examiner and all necessary tests be conducted. The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score. \ The examiner should set forth a complete rationale for all findings and conclusions in a legible report. 6. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist. The claims file should be made available to and reviewed by the examiner. All appropriate tests and studies should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation in light of his education, training and work history. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 7. Then readjudicate the appeal, to include determining whether a TDIU is warranted. If the benefits sought are not granted in full, the Veteran and his representative must be furnished a Supplemental Statement of the Case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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 and 7112. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs