Citation Nr: 1336469	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  10-18 918	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus with mild microalbuminuria. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

D. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from May 1966 to December 1969. 

This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

In a September 2009 rating decision, the RO granted service connection for mild microalbuminuria as part of the service-connected diabetes mellitus.

The Board's review has included both paper and electronic records.


FINDINGS OF FACT

1.  The weight of evidence shows that since August 21, 2007, the diabetes mellitus has not been manifested by regulation of activities.

2.  The weight of evidence shows that since August 21, 2007, the microalbuminuria has not been manifested by casts with a history of acute nephritis or hypertension.

3.  The evidence is in equipoise as to whether since August 21, 2007, the diabetes mellitus has been manifested by a voiding dysfunction resulting in awakening to void two times a night.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus since August 21, 2007, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.21, 4.119, Diagnostic Code 7913 (2013).

2.  The criteria for an initial separate compensable rating for microalbuminuria since August 21, 2007, have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.21, 4.115a (2013).

3.  With resolution of doubt in the Veteran's favor, the criteria for an initial separate 10 percent rating for a voiding dysfunction since August 21, 2007, have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.21, 4.115a (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's claim arises from his disagreement with the initial evaluation of the disability on appeal 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.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  In any event, VA provided the appellant in August 2008 and July and September 2009 correspondence Veterans Claims Assistance Act of 2000 (VCAA) notice in accordance with the decision in Quartuccio v. Principi, 16 Vet. App. 183 (2002), and Dingess v. Nicholson, 19 Vet. App. 473 (2006), as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A and 38 C.F.R. § 3.159(b), (c), that informed the appellant of the information and evidence necessary to substantiate his claim for a higher initial rating; notice of which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA; notice of what evidence is necessary for establishing an effective date; and notice that he should provide any evidence in his possession that pertains to the claim.
 
VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination.  The RO obtained the service, VA, and private treatment records and afforded the appellant VA examinations.  The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to evaluate the severity of his service-connected disability.  Therefore, the Board finds that these examinations are adequate on which to base a decision.



Governing law and regulations

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the issues involve the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case respect to the Veteran's claim for an increased initial rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119 (1999).

A 20 percent disability rating is warranted for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities.  A 60 percent disability rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hyperglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent disability rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with 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, Diagnostic Code 7913.

Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, is required for a 100 percent evaluation.  An 80 percent disability rating is warranted for the following: persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101, requires a 60 percent evaluation.  A 10 percent disability rating is warranted for the following: albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 (2013).  Albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101, is required for a zero percent evaluation.  38 C.F.R. § 4.115a.

Voiding dysfunction is rated on the basis of urine leakage, frequency, or obstructed voiding.  

For urine leakage, a 20 percent disability rating for continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence requiring the wearing of absorbent materials that must changed less than two times a day.  A 40 percent evaluation is warranted when absorbent materials must be changed two to four times a day.  A 60 percent disability rating requires either the use of an appliance or the changing of absorbent materials more than four times a day.  38 C.F.R. § 4.115a.

For urinary frequency, a 10 percent disability rating is warranted for either a daytime voiding interval that is between two and three hours or an awakening to void two times per night.  A 20 percent evaluation requires either a daytime voiding interval that is between one and two hours or an awakening to void three to four times a night.  A 40 percent disability rating is warranted for either a daytime voiding interval that is less than one hour or an awakening to void five or more times per night.  Id.

For obstructed voiding, a 10 percent evaluation is warranted for marked symptomatology (hesitancy, slow or weak stream, decreased force of stream) that is manifested by any one, or combination, of the following: (1) post void residuals greater than 150 cc; (2) uroflowmetry, markedly diminished peak flow rate (less than 10 cc/sec); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilatation every 2 to 3 months.  Also, urinary retention that requires intermittent or continuous catheterization is rated as 30 percent disabling.  Id.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor.  38 C.F.R. § 4.3.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.
 
Analysis

Diabetes mellitus 

A review of the VA examination reports and VA and private treatment records reflects that the weight of evidence shows that since August 21, 2007, the diabetes mellitus has not been manifested by regulation of activities. 

In an October 2013 appellant's brief, the representative noted that the Veteran contends that his diabetes mellitus causes restriction of activities.  The representative argues that a 40 percent disability rating is warranted based on the complaints of excessive fatigue being a restriction of activities and pursuant to 38 C.F.R. §§ 4.3, 4.7, and 4.21.  In this regard, the Board notes that the January 2008 VA examiner noted that the diabetes mellitus did not interfere with his usual activities or occupation.  The August 2011 VA examiner also specifically found that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus even though that examiner was aware of his complaint of constant excessive fatigue.  The Board also notes that an October 2010 VA mental disorders examination shows that the Veteran has poor sleep habits and that he is receiving a 10 percent disability rating for posttraumatic stress disorder with major depressive disorder.  Even assuming that the Veteran's diabetes mellitus does cause of contribute to his fatigue, the finding of the August 2011 VA examiner support the conclusion that the Veteran's diabetes does not result in restriction of activities as contemplated by the rating criteria.  As noted, although the Veteran is certainly competent to report experiencing fatigue, the VA examiner explained that restriction of activities is not requested as part of medical management of his diabetes.  

As for the applicability of 38 C.F.R. § 4.21, the weight of the evidence shows no restriction of activities.  Without restriction of activities, the impairment of function from the diabetes mellitus does not warrant a 40 percent disability rating especially since restriction of activities is the only criterion in a 40 percent evaluation that is not in a lower rating.  Thus, a higher rating pursuant to 38 C.F.R. § 4.21 is not warranted.

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.  

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability - managed by restricted diet, prescribed oral hypoglycemic agent, and prescribed insulin with more than one injection a day - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof.  The criteria specifically provide for evaluation of the disability based upon impairment of the diabetes mellitus due to requiring insulin or an oral hypoglycemic agent and due to restricted diet, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability.  See 38 C.F.R. § 4.1.

In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that an initial rating in excess of 20 percent since August 21, 2007, for diabetes mellitus is warranted.  Therefore, the preponderance of the evidence is against the claim, and it is denied.

Microalbuminuria

A review of the VA examination reports and VA and private treatment records reflects that the weight of evidence shows that since August 21, 2007, the microalbuminuria has not been manifested by casts with a history of acute nephritis or hypertension, the remaining criteria to even warrant a zero percent disability rating based on renal dysfunction.  There is no medical evidence of casts with a history of acute nephritis or a diagnosis of hypertension.  Although the September 2009 VA examiner diagnosed mild microalbuminuria, the August 2011 VA examiner found that the Veteran did not have diabetic nephropathy or renal dysfunction caused by diabetes mellitus.

As to extra-schedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability - mild microalbuminuria - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof.  The criteria specifically provide for evaluation of the disability based upon impairment of renal function based on the presence of albumin, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability.  See 38 C.F.R. § 4.1.

Nocturia

A review of the VA examination reports and VA and private treatment records reflects that the Veteran has had complaints of nocturia.  In May 2008, the Veteran's private treating urologist opined that the nocturia is likely part of the Veteran's diabetes mellitus.  

In May 2007, the Veteran reported to his private urologist that he had nocturia two to three times a night.  A private treatment record dated in December 2007 and a January 2008 VA examination report show that the appellant denied any current nocturia.  In May 2008, the claimant reported to his private urologist that he had nocturia generally one time a night but that he occasionally had it twice a night.  At the September 2009 VA examination, he reported nocturia twice a night.  The evidence is in equipoise as to whether since August 21, 2007, the diabetes mellitus has been manifested by a voiding dysfunction resulting in awakening to void two times a night.

Turning to whether a rating in excess of 10 percent disability rating since August 21, 2007, is warranted for a voiding dysfunction resulting in awakening at night, the Veteran last reported awakening three times a night to urinate in May 2007 and all medical evidence since May 2007 shows that he reported at most awakening twice a night to void.  Thus, a higher rating is not warranted under the current rating criteria for rating voiding dysfunction.

As to extra-schedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability - awakening to void two times a night - with the established criteria shows that the rating criteria reasonably describe the level and symptomatology thereof.  The criteria specifically provide for evaluation of the disability based upon impairment of voiding dysfunction based on frequency of awakening to urinate, and they practicably represent the average impairment in earning capacity resulting from the Veteran's service-connected disability.  See 38 C.F.R. § 4.1.

Total disability rating based on individual unemployability (TDIU)

Given the Veteran's own acknowledgement that he has worked at the same job for nine years (see October 2010 VA mental-disorders examination), the Board does not believe that he has raised a claim for TDIU.  Accordingly, the Board concludes that the issue of TDIU has not been raised in this case.



ORDER

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus since August 21, 2007, with mild microalbuminuria is denied.

Entitlement to an initial separate compensable rating since August 21, 2007, for mild microalbuminuria is denied.

Entitlement to an initial 10 percent disability rating since August 21, 2007, for nocturia related to diabetes mellitus is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs