Citation Nr: 1335514 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-37 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for bilateral cataracts, claimed as secondary to service-connected diabetes. 2. Entitlement to an initial disability rating in excess of 20 percent for type I diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from November 1981 to November 1985, and from February 1987 to August 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of December 2006 of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for diabetes and assigned a 20 percent rating. This claim was before the Board in November 2011. The Board denied the Veteran's claim for service connection for bilateral hearing loss and remanded the Veteran's claim for an increased rating for diabetes. The development ordered by the Board's November 2011 remand has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). On her November 2007 substantive appeal, the Veteran requested either an in-person hearing or a video conference hearing. The Veteran was scheduled for a hearing in August 2010. Though she asked for her hearing to be rescheduled, the Board determined in November 2011 that she had not presented good cause for rescheduling her hearing. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The holding of Rice is inapplicable here, as the evidence of record shows that the Veteran works full time at Peterson Air Force Base. FINDINGS OF FACT 1. The Veteran currently suffers from bilateral cataracts that are causally related to her service-connected diabetes. 2. The Veteran's treatment for diabetes requires the use of insulin and a restricted diet, but does not require regulation of activities. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral cataracts have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. The criteria for a disability rating in excess of 20 percent for type I diabetes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.41, 4.119, Diagnostic Code (DC) 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to 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. With regard to the claim for service connection for cataracts, the Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. With regard to the claim for an increased initial rating for diabetes, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and private treatment records have been obtained; she did not identify any VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations were conducted in June 2006 and December 2011; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations provide sufficient information to rate the Veteran under the applicable Diagnostic Codes, and the December 2011 examination responded to the specific questions posed by the Board. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim 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 v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Entitlement to Service Connection for Bilateral Cataracts Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) ; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability shown to be proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310. The Veteran did not explicitly seek service connection for an eye condition. Instead, following the Board's November 2011 remand, the Veteran underwent a VA examination in which it was determined that she currently suffers from cataracts, and that this condition is secondary to her diabetes. Specifically, the examiner diagnosed the Veteran as suffering from preoperative cataracts in both eyes, and he concluded that her cataracts are "related to [her] diabetes because of [the] long duration of diabetes." Service connection for bilateral cataracts is warranted. III. Entitlement to an Increased Rating for Diabetes Disability ratings are determined by applying a schedule of ratings 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. Further, 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 the appellant 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 assigned. 38 C.F.R. § 4.7. The Veteran's type I diabetes mellitus has been evaluated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. The 20 percent rating assigned contemplates diabetes mellitus requiring insulin and a restricted diet, or requiring the use of an oral hypoglycemic agent and restricted diet. A higher 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. Id. Still higher ratings are authorized for manifestations, all of which require regulation of activities, not demonstrated by the evidence of record. The term "regulation of activities" is defined as an "avoidance of strenuous occupational and recreational activities." Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). In order for a claimant's diabetes to warrant a rating in excess of 20 percent, "it must be shown that a regulation of these activities is medically necessary." Id. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the determination must be made as to whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran underwent a VA examination in June 2006. She reported being first diagnosed as suffering from diabetes in 2000. She reported symptoms of jitteriness and shakiness during periods of hypoglycemia, but that she has enough time to correct her blood sugar. She denied fainting episodes on account of her hypoglycemia. The examiner confirmed her diagnosis of type I diabetes. In her January 2007 notice of disagreement, the Veteran contended that she should receive a higher rating for her diabetes. She stated that she used insulin and a controlled diet for her diabetes, and she stated that her activities had been restricted. She reiterated these contentions in her November 2007 substantive appeal. In a January 2007 letter, R.G., M.D., wrote that the Veteran has type I diabetes, and that she is dependent on insulin to maintain healthy blood sugar levels. He stated that the Veteran is required to monitor her blood sugar 4 to 6 times per day. Dr. R.G. also stated that the Veteran is "required to monitor her food intake and regulate her daily activities." The Veteran underwent a VA examination in December 2011. The Veteran denied being hospitalized for hypoglycemia or ketoacidosis in the last year. She denied episodes of hypoglycemia or ketoacidosis requiring a physician visit in the last year. She reported no complications of her diabetes. The Veteran was found to manage her diabetes by restricted diet and by use of an insulin pump, but the examiner reported that the Veteran's diabetes did not require regulation of activities. The Veteran had no progressive unintentional weight loss or progressive loss of strength attributable to her diabetes. She did not have complications such as neuropathy, skin conditions, or hypertension. With regard to regulation of activities, the examiner concluded that it is less likely than not that it is medically necessary for the Veteran to avoid strenuous occupational and recreational activities to control her diabetes. The examiner noted that the Veteran frequently exercises and experiences no fluctuations in her blood sugar that are not controlled by adjusting her insulin pump. The examiner reported that the Veteran's diabetes has no functional impact on her job duties. He further noted that the Veteran has not missed work or been hospitalized on account of her service-connected condition. This evidence shows that the 20 percent rating assigned is appropriate. Such a rating is assigned for diabetes requiring insulin and a restricted diet, and both VA examinations and Dr. R.G.'s letter show that the Veteran controls her diabetes via these methods. A 40 percent or higher rating would only be warranted with evidence that the Veteran's diabetes required insulin, restricted diet, and regulation of activities. The examiner from the December 2011 examination was clear that the Veteran's diabetes does not require regulation of activities, and she provided the reasons underlying this conclusion. Supporting the Veteran's contention that regulation of activities is required to manage her diabetes is Dr. R.G.'s letter and the Veteran's own statements. Neither is sufficient to support a 40 percent rating. With regard to Dr. R.G.'s letter, he wrote that the Veteran's diabetes required her to "regulate her daily activities," Dr. R.G. did not, however, state what activities had to be regulated or why. In contrast, the examiner from the Veteran's December 2011 VA examination explained in detail why the Veteran's diabetes does not require regulation of activities. The opinion of the VA examiner is thus of much greater probative value than that of Dr. R.G. With regard to the Veteran's statements, she is not competent to state whether her diabetes requires the regulation of activities. Regulation of activities is an "avoidance of strenuous occupational and recreational activities," and "it must be shown that a regulation of these activities is medically necessary." Camacho, 21 Vet. App. at 363 (emphasis added). The Veteran does not have the requisite medical training or experience necessary to determine that her diabetes requires regulation of her activities, so her statement is not considered competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that she is repeating the diagnosis of Dr. R.G., his opinion is of significantly less probative value than that of the VA examiner. The evidence shows that the Veteran's service-connected diabetes requires the use of insulin and a restricted diet; the rating criteria considered in this case reasonably describe the Veteran's disability level and these symptoms. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for diabetes is adequate, and referral for extraschedular consideration is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). The preponderance of the evidence is against the claim for an initial rating for rating in excess of 20 percent for type I diabetes mellitus; there is no doubt to be resolved; and an initial rating in excess of 20 percent is not warranted. ORDER Entitlement to service connection for bilateral cataracts is granted. Entitlement to an initial disability rating in excess of 20 percent for type I diabetes mellitus is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs