Citation Nr: 1337596 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-00 797 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for the service-connected diabetes mellitus, type II with erectile dysfunction, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to August 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the RO in Philadelphia, Pennsylvania. The case is now under the jurisdiction of the RO in St. Petersburg, Florida. In his December 2006 Substantive Appeal, the Veteran requested that he be scheduled for a hearing with the Board. The Veteran's hearing request was acknowledged by the RO in a letter mailed to the Veteran in January 2007. A hearing was scheduled to take place in March 2008 at the RO. Notice of the scheduled hearing was mailed to the Veteran; however, he did not appear at the scheduled time. The Veteran has not made a request to reschedule the hearing, nor has he made a renewed request for a hearing. In October 2010, the Board remanded the Veteran's claim for an additional VA examination. The Veteran underwent a VA examination in August 2012. Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate consideration. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board also notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. Prior to August 21, 2012, the service-connected diabetes mellitus is shown to have been controlled with insulin and a restricted diet; there is no showing of any need for regulation of activities. 2. Starting on August 21, 2012, the service-connected diabetes mellitus is shown to be productive of a disability picture that more nearly approximated that of being controlled with insulin, a restricted diet and regulation of activities, as well as episodes of ketoacidosis or hypoglycemic reactions requiring visits twice a month to a diabetic care provider. CONCLUSIONS OF LAW 1. For the period of the appeal prior to August 21, 2012, the criteria for the assignment of a rating in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§3.321, 4.1, 4.3, 4.7, 4.119 including Diagnostic Code 7913 (2012). 2. For the period of the appeal beginning on August 21, 2012, the criteria for the assignment of a 60 percent rating, but no higher for the service-connected diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§3.321, 4.1, 4.3, 4.7, 4.119 including Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA letters dated in March 2006 and November 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The service treatment records and post-service VA and private treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Veteran was provided VA examinations in March 2006, December 2010 and August 2012 to evaluate the severity of the service-connected disability over the course of the period of the appeal. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims folder, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Rules and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, 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 to be assigned. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual background and Analysis Prior to August 21, 2012 In this case, the Veteran asserts that the service-connected diabetes mellitus is worse than the 20 percent disabling. During a March 2006 VA examination, the Veteran denied any episode of ketoacidosis, although he had had hypoglycemic reaction once or twice in 65 months that resolved by eating sugar candy. He had never been hospitalized for hypoglycemic reactions or ketoacidosis. He was following a restricted diet and using insulin. The Veteran denied any restriction of activity on account of diabetes. He visited his diabetic care provider every three months. After an examination, the diagnosis was diabetes mellitus, type 2. In a June 2006 VA progress note, the Veteran asserted that his activities and diet were quite impacted by his diabetes and diabetic neuropathy. The examiner concurred that his report was very likely. The examiner noted that he must adhere to a restricted diet and that his pain had affected his ability to work restricting the number of hours he can work. In a June 2006 statement, the Veteran asserted that his activities were restricted as he was no longer able to work full time. In March 2006, March 2007, November 2009, and September 2010 VA progress notes, the Veteran was counseled on the importance of diet and weight control in the control of blood pressure. He was also counseled on the importance of regular exercise and/or physical activity in the control of blood pressure. During a November 2010VA examination, the examiner noted no history of diabetes mellitus-related hospitalization or surgery, pancreatic trauma, or diabetes mellitus-related neoplasm. There were no episodes of hypoglycemia reactions or ketoacidosis. The Veteran was instructed to follow a restricted diet, but the Veteran was not restricted in ability to perform strenuous activities. After careful review, the Board finds that the evidence does not support the assignment of a rating in excess of 20 percent for the service-connected diabetes mellitus for the initial period of the appeal. During this time, the objective medical evidence showed that the diabetes mellitus required insulin and restrictions in his diet. Under Diagnostic Code 7913 the Veteran is entitled to a 20 percent disability rating for treatment with insulin or an oral hypoglycemic agent and a restricted diet. To warrant the next higher rating of 40 percent, the Veteran must be treated with insulin as well as have restrictions on diet and regulation of his activities. 38 C.F.R. § 4.119, Code 7913. The Board recognizes the Veteran's assertion that his activities are regulated because he was unable to work an entire day. However, 'regulation of activities' for purposes of evaluation of diabetes refers to the need to monitor, restrict, or modify activity, particularly strenuous activity, in order to maintain blood sugar control. Appropriate findings would relate to the need to monitor blood sugar before, during, or after activity; to eat sugary foods; to take additional medication; or directives to not engage in strenuous activity due to blood sugar levels. No treating doctor or examiner has noted any need to restrict or regulate activity for purposes of blood sugar control. The Veteran has alleged such is necessary, but as a layperson, the Veteran is not competent to render a medical opinion relating activity to blood sugar. He is able to report when he is fatigued or nauseous, and what his blood sugar levels might be, but he himself cannot prescribe for himself a plan of diabetic care. Accordingly, on this record, an evaluation in excess of 20 percent is not assignable for the initial part of the appeal. The rating criteria for diabetes are successive. 'Successive' rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The lack of a need for regulation of activity is determinative as to any claim for evaluation in excess of the current 20 percent. From August 21, 2012 In the August 2012 VA examination, the examiner noted that the Veteran was prescribed insulin more than one injection per day. His diabetes mellitus required regulation of activities as part of medical management of disease by pacing activity to avoid episodes of hypoglycemia. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions twice a month, although he has had had no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. After a careful review of the record, the Board finds that the evidence supports the assignment of a 60 percent rating for the service-connected diabetes mellitus disability. During this time, the service-connected disability picture is shown to more closely resemble that of the disease process requiring insulin, restrictions in his diet, and regulation of activities, as well as resulting in episodes of ketoacidosis or hypoglycemic reactions requiring visits twice a month to a diabetic care provider. Additionally, the Veteran has erectile dysfunction, complication associated with his diabetes mellitus but, if rated separately, would not be compensable. Accordingly, under Diagnostic Code 7913, an increased rating of 60 percent, but no more for the service-connected diabetes mellitus beginning in the later portion of the period of the appeal. Certainly, as discussed, it can be factually ascertained that he met the criteria for a 60 percent rating for the service-connected diabetes mellitus at the time of the VA examination performed on August 21, 2012. To be entitled to a higher, 100 percent evaluation, diabetes mellitus requires 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 progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Code 7913. Accordingly, an evaluation higher than 60 percent is not warranted at any time during the course of the appeal. To the extent that no episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength or complications that would be compensable if separately evaluated, are not shown, a 100 percent rating is not for application. Extraschedular Evaluation In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimants exceptional disability picture exhibits other related factors identified in the regulations as 'governing norms.' Id. see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The record does not establish that the rating criteria are inadequate in this case. The treatment for diabetes including insulin, regulation of diet and activities, and diabetic care visits are specifically noted within the rating criteria. All applicable criteria provide for higher evaluations for more severe or additional symptoms which are simply not present here. Further, those criteria fully contemplate the Veteran's complaints and the objective findings. No further discussion of extraschedular evaluation is warranted. ORDER An increased rating in excess of 20 percent for the service-connected diabetes mellitus, type II with erectile dysfunction prior to August 21, 2012 is denied. An increased rating of 60 percent, but not higher for the service-connected diabetes mellitus, type II with erectile dysfunction, beginning on August 21, 2012, is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs