Citation Nr: 1336963 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-18 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected Type II Diabetes Mellitus (DM). 3. Entitlement to service connection for bullous lesions, to include as secondary to service-connected DM. 4. Entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder. 5. Entitlement to a disability rating in excess of 20 percent for service-connected DM. 6. Entitlement to a disability rating in excess of 10 percent for service-connected peripheral neuropathy to the left lower extremity. 7. Entitlement to a disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and Veteran's Son ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1964 to June 1969, with service in the Republic of Vietnam. These matters come to Board of Veterans' Appeals (Board) on appeal from April 2009, September 2009, July 2010, and September 2011 rating decisions by the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). In June 2013, the Veteran appeared and provided testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the Veteran's "Virtual VA" file. The Board notes that at the time of his hearing, the Veteran indicated his desire to withdraw his claims for entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. It appears that the issues of entitlement to service connection for ischemic heart disease, as due to herbicide exposure, and entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, as due to herbicide exposure or service-connected DM, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action (if needed). The issues of entitlement to disability ratings in excess of 10 percent of peripheral neuropathy of the left and right lower extremities and entitlement 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. FINDINGS OF FACT 1. On June 17, 2013, prior to promulgation of a decision in this appeal, the Veteran testified at his hearing before the Board that he wished to withdraw the portion of his current claim on appeal addressing entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder. 2. The Veteran's testimony from the June 17, 2013 Board hearing, which has been transcribed and associated with the Veteran's "Virtual VA" file, satisfies the requirement of submitting a written withdrawal of the portion of his appeal seeking entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder. 3. Prior to June 17, 2013, the Veteran's DM does not require regulation of activities. 4. From June 17, 2013, the evidence shows that the Veteran's DM requires insulin, restriction of diet, and regulation of activities. CONCLUSIONS OF LAW 1. Because the Veteran has withdrawn the portion of his appeal addressing the issues of entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder; the Board does not have jurisdiction to consider those claims. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). 2. Prior to June 17, 2013, the criteria for a disability rating in excess of 20 percent for service-connected DM, have not been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2013). 3. From June 17, 2013, the criteria for a disability rating of 40 percent, but no higher, have been met. 38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Withdrawal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or his authorized representative. 38 C.F.R. § 20.204. In this case, the Veteran indicated his desire to withdraw the portion of his appeal seeking entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder, at his hearing before the Board in June 2013. The oral withdrawal of these claims was made on the record and a transcript of the hearing has been associated with the Veteran's "Virtual VA" file. The transcribed statements constitute a written withdrawal of the substantive appeals filed in relation to these claims. Hence, there remain no allegations or errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the claims of entitlement to service connection for a back disability; entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder; and they must therefore be dismissed, without prejudice. 38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b), (c). Disability Evaluation of Service-Connected DM Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, 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 an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has held that "staged" ratings are appropriate for any rating claim when 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). Under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 20 percent rating for diabetes mellitus requires insulin or an oral hypoglycemic agent and a restricted diet. A 40 percent rating requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating requires insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring 1 or 2 hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In December 2008, the Veteran was afforded a VA examination for his DM. At that time, it was noted that the Veteran was treated with insulin, more than once daily, oral medication, and a restricted or special diet. The examiner noted that the Veteran had no history of hospitalization related to his DM and the was no history of episodes of hypoglycemic reactions of ketoacidosis. The examiner noted that the Veteran was not restricted in activities. He was noted to have peripheral neuropathy in the bilateral lower extremities. It was noted that the Veteran had been unemployed for 2 to 5 years, due to various medical problems. The examiner noted that the Veteran's DM, and associated peripheral neuropathy had mild effects on the Veteran's ability to do chores, shopping, exercise, recreation and traveling; and no effects on his ability to do sports, feeding, bathing, dressing, toileting, grooming, and driving. In July 2011, the Veteran was afforded another VA examination for his DM. At that time, it was noted that the Veteran's DM was treated with insulin and a restricted diet. The examiner noted that the Veteran was not restricted in activities. There were no reported episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or emergent treatment within the previous year. The examiner noted the Veteran's peripheral neuropathy associated with his DM. The Veteran reported that his DM affected his diet. He reported that he was able to bathe, dress, and do limited chores and shopping. He reported that he rarely drove, but this was related to his peripheral neuropathy symptoms as it was difficult to operate the pedals. The examiner noted that the Veteran's service-connected disabilities, would be limiting on the Veteran's employment, in that he would be precluded form working in certain positions requiring heaving physical exertion or requiring prolonged sitting, walking, climbing, crawling, or heavy lifting. However, he would not be limited form working in a sedentary position that allowed for frequent breaks to change positions. Of record are extensive VA treatment records that show the Veteran receives regular treatment for a variety of medical conditions, including his service-connected DM. A review of these records shows that when seen for his DM, the Veteran is typically noted to be in poor compliance with his treatment plan, which includes insulin, oral medication, and a restricted diet. There is no indication from the VA treatment notes of record, in either the physical claims files or the "Virtual VA" file, that the Veteran was ever restricted in his activities; or that he suffered from episodes of ketoacidosis or hypoglycemic reactions that required hospitalization or emergency treatment. At his June 2013 Board hearing, the Veteran testified that his DM treatment now included insulin, a restricted diet, and restricted activities. In July 2013, the Veteran submitted a letter from his private physician, Dr. P.P., to corroborate his June 2013 testimony. In his July 2013 letter, Dr. P.P. stated the Veteran's DM required treatment that included oral medication, insulin injection, restricted diet, and restriction of activities. Based on the evidence above, the Board finds that prior to June 17, 2013, the date of his Board hearing when the Veteran first testified that his DM required regulation of activities, a disability rating in excess of 20 percent is not warranted. In this regard, the Board notes that the medical evidence of record shows that, prior to June 17, 2013, the Veteran was treating his DM with oral medication, insulin, and a restricted diet. There is no evidence, either from the VA examination reports of record or the VA treatment records, that regulation of activities was required as treatment for his DM. Further, there is no medical evidence that the Veteran suffered from ketoacidosis or hypoglycemic episodes. Additionally, the Veteran is separately evaluated for peripheral neuropathy of the bilateral lower extremities related of his DM and using such disabilities to support a higher disability rating for DM would be in violation of 38 C.F.R. § 4.14. Therefore, the Board finds that, prior to June 17, 2013, a disability rating in excess of 20 percent is not warranted for the Veteran's DM. From June 17, 2013, the Board finds that a disability rating of 40 percent is warranted for the Veteran's DM. As noted above, at the June 17, 2013 Board hearing, the Veteran testified that he is activities had been restricted due to his DM, and in July 2013 he submitted a letter from his private doctor corroborating his testimony. The July 2013 letter, Dr. P.P., stated that the Veteran's DM required oral medication, insulin, restricted diet, and restriction of activities. However, there is no evidence of episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice-a-month visits to a diabetic care provider, and as noted above, the Veteran has separate ratings for his bilateral lower extremity peripheral neuropathy. Therefore, the Board finds that as there is evidence that the Veteran's DM requires regulation of activities, a disability rating of 40 percent, but no higher, is warranted from June 17, 2013. This finding is based on the most recent evidence, which the Board has no reason to dispute. If, in the future, it is indicated that the Veteran does not have a regulation of activities caused by this DM, or that the private report was not correct, this evaluation would change. However, at this time, the Board has no reason to dispute the findings of the report. The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008). In the case at hand, the record reflects that the manifestations of the Veteran's service-connected DM are contemplated by the schedular criteria. There is no indication that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for his service-connected DM. While the Board acknowledges that the record indicates the Veteran is unemployed as a result of various medical conditions, and the Veteran indicated at his June 2013 Board hearing his intent to file a claim of entitlement to TDIU, there is no indication that the Veteran is unemployed solely as a result of his service-connected DM. Further, the issue of entitlement to a TDIU is addressed in the remand portion below. In sum, there is no indication that the average industrial impairment from the Veteran's DM would be in excess of that contemplated by the disability evaluations assigned herein. Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2008, May 2010, July 2010, June 2011, and October 2011. These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, pertinent post treatment records, and he was afforded appropriate VA medical examinations. Also, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the June 2013 Board hearing, the VLJ fully explained the issues on appeal, and asked questions focused on the nature and symptomatology of the disabilities in question, specifically as to the severity of the Veteran's service-connected DM. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans and additional testimony was provided by the Veteran's son. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked, or was outstanding, that might substantiate the claim. The Veteran noted that there was additional evidence from his private doctor that he intended to submit in support of his claim, and the VLJ agreed to hold the record open for 60 days to await the submission of such evidence. The Board notes that neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims discussed above. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER The claims seeking entitlement to service connection for erectile dysfunction, to include as secondary to service-connected DM; entitlement to service connection for bullous lesions, to include as secondary to service-connected DM; and entitlement to a disability rating in excess of 30 percent for service-connected anxiety disorder; are dismissed without prejudice. Entitlement to a disability rating in excess of 20 percent for service-connected DM, prior to June 17, 2013, is not warranted. To this extent the appeal is denied. Entitlement to a disability rating of 40 percent, but no higher, for service-connected DM, from June 17, 2013, is warranted. To this extent the appeal is granted, subject to the criteria applicable to the payment of monetary benefits. REMAND The Board finds that additional development is needed before the Veteran's remaining claims on appeal are decided. At the outset, the Board notes that in September 2011, the Veteran submitted a statement that the Board has found to be a timely notice of disagreement with the September 2011 denial of entitlement to a TDIU. A review of the record shows that the Veteran was not furnished with a statement of the case (SOC) in response to his notice of disagreement. Because the notice of disagreement places the issue in appellate status, the matter must be remanded for the originating agency to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Additionally, the Veteran has alleged that he is entitled to disability rating in excess of 10 percent for peripheral neuropathy of the left and right lower extremities. At his June 2013 Board hearing, the Veteran requested a new VA examination. The Board notes that the Veteran withdrew this request on the presumption that current medical records would provide a more accurate portrayal of the severity of the Veteran's bilateral peripheral neuropathy. However, after review of the evidence of record, the Board finds that a VA examination is necessary in order to determine the current severity of the Veteran's disability. In this regard, the Board notes that the most recent VA examination report, dated June 2011, documents the Veteran's reports of numbness, pain, and achiness in his bilateral lower extremities, precipitated by prolonged sitting or standing. More recent VA treatment records, indicate that the Veteran's symptoms may have worsened since the June 2011 VA examination. Specifically, an April 2012 treatment record associated with the Veteran's "Virtual VA" file notes his complaints of chronic pain in his bilateral lower extremities, due to his neuropathy, that was daily and continuous. Further, the Veteran and his son testified at the June 2013 Board hearing about symptoms of frequent severe spasms in the Veteran's bilateral lower legs. Therefore, the Board finds that the evidence of record indicates that the Veteran's peripheral neuropathy in his bilateral lower extremities may have increased in severity since his last VA examination, and as such, a new VA examination is necessary before a decision can be rendered. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should provide the Veteran with a statement of the case as to the issue of entitlement to a TDIU. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. 2. The Veteran should be afforded a VA examination, by an examiner with sufficient expertise to determine the current severity of the Veteran's service-connected peripheral neuropathy of his bilateral lower extremities and his DM (including whether the Veteran has a regulation of actives caused by his DM). The claims file must be made available to and reviewed by the examiner. All tests and studies deemed necessary by the examiner should be performed. In discussing the relevant clinical findings, the examiner should specifically note the Veteran's current complaints, symptoms, any interference with daily and/or occupational activities, and the level of the disability. The supporting rationale for all opinions expressed must be provided. 3. The RO or the AMC should confirm that any medical opinions provided comport with this remand and undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's remaining claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided an appropriate opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 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 that are 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, 7112 (West Supp. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs