Citation Nr: 1338119 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-33 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a cyst on the left kidney, claimed as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2007 and October 2007 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. This case was previously before the Board in August 2012 and was remanded for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The issue of entitlement to service connection for chloracne has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a cyst on the left kidney, claimed as secondary to service-connected diabetes mellitus, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT Throughout the period on appeal the evidence shows that the Veteran's diabetes mellitus requires oral medication, daily insulin, and dietary restrictions, but it does not require regulation of activities, and 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. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R § 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In this case, in March 2007, the Veteran was provided with compliant VCAA notice regarding what information and evidence that is needed to substantiate his claim for an increased rating for diabetes mellitus, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in February 2013. VA also has a duty to assist the Veteran in the development of the claim. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Records associated with the Veteran's claims file include service treatment records, VA post service treatment records, private treatment records and VA examination reports. The Veteran has not indicated the existence of additional pertinent evidence. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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). Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all 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 submitted by the appellant or obtained on her behalf 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 shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In April 2005, the RO granted service connection for diabetes mellitus associated with exposure to herbicides and assigned a 20 percent evaluation effective from March 25, 2005. The Veteran submitted the current claim for a higher rating in March 2007. The Veteran's diabetes mellitus has been rated under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). A rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A rating of 60 percent is assigned when the diabetes mellitus requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic 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 rating of 100 percent is assigned if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately rated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). The phrase regulation of activities means avoidance of strenuous occupational and recreational activities. Id. In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2013). The Veteran essentially claims that the rating assigned for his diabetes mellitus does not accurately compensate the severity of this disability. He contends that his diabetes mellitus requires restricted activity, specifically, work restrictions. During the appeal, VA treatment records document treatment for diabetes mellitus with restricted diet, exercise and medication. In July 2006, the Veteran's oral medication dosage was increased. He was also advised to lose weight, watch his diet and exercise. Private treatment records in January 2007 and February 2007 noted non-insulin requiring diabetes without complications, treated with oral hypoglycemic. The Veteran denied experiencing any diabetic symptoms. The Veteran was started on insulin in February 2007. Subsequent VA treatment records show continued treatment for diabetes with a oral medication, insulin, and a restricted diet. Ongoing treatment records show that the Veteran was also counseled on the importance of physical activity and losing weight. In April 2007, a VA examiner noted treatment for diabetes with oral medication and insulin, as well as a restricted diet. The Veteran and reported weight loss of 10 pounds over the previous three months. The Veteran, who at the time was employed delivering medications, reported numbness of the feet while driving. He denied ketoacidosis or hypoglycemic episodes. He denied bowel or bladder impairment. The examiner noted no history of coronary artery disease, congestive heart failure, retinopathy, stroke, nephropathy or peripheral vascular disease. There was no occupational impairment due to diabetes. On VA examination in August 2007, the Veteran denied ketoacidosis. However, he related daily hypoglycemic symptoms to include lightheadedness, sweating and palpitations, which were relieved by intake of sugar. The Veteran, who continued to be employed as a driver, indicated that his due to hypoglycemic symptoms he sometimes had to pull over and get something to drink. Other than that, he stated that numbness in his feet occasionally presented difficulties driving. The Veteran reported being on a restricted diet. His weight had been stable that year. While the Veteran related recent treatment for a heart condition, the examiner indicated that a stress test in January 2007 was normal. The examiner noted peripheral neuropathy of the hands and feet, but found no other complications related to diabetes, to include bowel or bladder impairment. Medications included daily insulin, Simvastatin, Metformin, Oxaprozin and Ranitidine. The examiner diagnosed diabetes mellitus type 2 with progression of the disease, now requiring insulin, along with a restricted diet, with some occupational impairment due to hypoglycemic episodes. Diabetes did not affect his activities of daily living. On VA examination in August 2012, the examiner diagnosed diabetes mellitus treated with prescribed hypoglycemic agents, insulin injection more than once a day, and a restricted diet. The examiner found that the Veteran's diabetes did not require regulation of activities as part of his medical management. The Veteran visited his diabetic health care provider less than twice a month. There were no episodes of ketoacidosis or hypoglycemia requiring hospitalizations. There was no unintentional weight loss or progressive loss of strength attributable to diabetes. The examiner noted no complications of diabetes, and diabetes did not affect his ability to work. Accordingly, the Board finds that the evidence shows diabetes mellitus requiring oral medication, daily insulin, and a restricted diet. However, the Board finds that the evidence does not demonstrate that his diabetes has required regulation of activities. There is no evidence in the clinical treatment notes consistent with regulation of activities due to diabetes; rather it is apparent that the Veteran has consistently been encouraged to exercise. Moreover, the VA examiners throughout the appeal did not indicate that the Veteran's diabetes required regulation of activity and the VA examiner in August 2012 specifically noted that the Veteran's diabetes did not require regulation of activities as part of his medical management. Additionally, while the evidence shows symptoms of hypoglycemia treated with medication, 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. Since there is no medical evidence of regulation of activities, the Board finds that the criteria for the next higher rating have not been met. 38 C.F.R. § 4.119, Diagnostic Code 7913(2013). To the extent that in June 2007, October 2007, and November 2007 statements the Veteran related restricted activities of daily living and occupationally, to include lifting restrictions, he attributed these limitations to heart and kidney conditions. To the extent that Veteran complained of symptoms associated with the lower extremities, the Board notes that the RO separately rated the complications of diabetes mellitus and there is no indication that the Veteran has disagreed with the ratings assigned. In this regard, service connection is currently in effect for peripheral neuropathy of the bilateral upper and lower extremities. He has been assigned separate disability ratings of 10 percent, respectively. The claims were most recently adjudicated by rating decisions in October 2009 and November 2011. There is no indication that the Veteran has disagreed with those decisions. Additionally, service connection is currently in effect for cataracts, rated 10 percent disabling, and erectile dysfunction, associated with diabetes mellitus. He is also in receipt of special monthly compensation due to loss of use of a creative organ. Thus, as he is separately rated for these diabetic complications, symptoms from these disabilities cannot be considered in evaluating his diabetes mellitus. In this regard, the rating of the same manifestation under different diagnoses, a practice known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2013). As a final matter, the Board has considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2013); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms, to include assigning separate ratings for diabetic complications. Thus, the Board finds his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In sum, based on the evidence of record, entitlement to an evaluation in excess of 20 percent for diabetes mellitus is not warranted. The preponderance of the evidence is also against the assignment of any additional separate ratings, other than those currently in effect. As the preponderance of the evidence is otherwise against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER A rating higher than 20 percent for diabetes mellitus is denied. REMAND While further delay is regrettable, the Board finds that additional development is necessary for the claim for service connection for a cyst on the left kidney. The Veteran claims service connection for a cyst on the left kidney as secondary to the service-connected diabetes mellitus. The RO denied the claim in October 2007 based largely in part on the report of an August 2007 VA examination report that found that, while the Veteran had a cyst on his kidney, this was unrelated to the service-connected diabetes mellitus type 2. However, in August 2012 the Board determined that the examiner failed to provide a rationale for the opinion and as such, a new VA examination was needed to determine if the Veteran had a cyst on the kidney which was etiologically linked to his active duty service or to service-connected diabetes mellitus. Pursuant to the remand instructions, the Veteran underwent a VA examination in August 2012. Following a review of the claims file and an examination of the Veteran, the examiner opined that it was less likely than not that the Veteran's kidney cyst was a result of the service-connected diabetes. The examiner explained that renal cysts were commonly seen in normal kidneys and incidence increased with age. The Board notes that the VA examiner did not state whether the Veteran's kidney cyst was aggravated by his service-connected diabetes mellitus. A claimant may be awarded service connection on a secondary basis for the degree that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, the Board finds that an addendum to the August 2012 examination is needed regarding whether the Veteran's kidney cyst has been aggravated by his service-connected diabetes mellitus. The examiner is also asked to address whether the Veteran's renal cysts arose are etiologically linked to the Veteran's active duty service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). On remand, relevant ongoing medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records relevant to the Veteran's claim for service connection for a kidney cyst from the VA Medical Center dated after December 2011, which have not been associated with the claims file. 2. Return the claims file to the VA examiner who conducted the August 2012 nephrology examination, if available, to obtain an addendum opinion. If the original examiner is not available, forward the claims file to an appropriate examiner to obtain the requested opinion. If a new examination is deemed necessary, one should be scheduled. Following review of the claims file, the examiner should provide an addendum opinion addressing the following: a. Is it at least as likely as not (50 percent or greater likelihood) that the Veteran has a left kidney cyst arose during active duty service or is etiologically linked to the Veteran's active duty service? Please explain why or why not. b. If the answer above is no, is it at least as likely as not (50 percent or greater likelihood) that the Veteran has a left kidney cyst which was permanently worsened beyond normal progression (aggravated) by the service-connected diabetes mellitus type 2, to include insulin treatment? Please explain why or why not. c. If the examiner finds that the Veteran's left kidney cyst was aggravated by his service-connected diabetes, the examiner should opine as to the baseline level of disability of the left kidney cyst prior to aggravation by diabetes based on medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of a left kidney cyst. d. A complete rationale must be provided for all opinions expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). ______________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs