Citation Nr: 1338795 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-48 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 20 percent for the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. In September 2012, the Veteran withdrew his request for a hearing before the Board. As such, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(e). The case was most recently before the Board in January 2013. The matter was remanded for further development and adjudication. The claim has been return to the Board and is now ready for appellate disposition. FINDING OF FACT The service-connected diabetes mellitus is not shown to be productive of a disability picture that is manifested by the required regulation of activities at any time during the appeal period. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the service-connected diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.20, 4.40, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in October 2005. Additional letters were sent in May 2008. In August 2009, the RO sent the Veteran a notice that contained the pertinent rating criteria under the applicable diagnostic code to establish a higher rating for diabetes mellitus. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (including VA outpatient treatment and Social Security records), provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which he withdrew. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper and virtual 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 Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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. VA should interpret 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. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). As an initial matter, the Board notes that service connection is already in effect for peripheral neuropathy of the bilateral lower extremities and nonproliferative diabetic retinopathy associated with diabetes mellitus, rated separately and not part of the current appeal. Service connection is also in effect for erectile dysfunction; however, he did not meet the criteria for a compensable evaluation and it remains part of the diabetic process. 38 C.F.R. §§ 4.75, 4.76, 4.115b, 4.120. The service-connected diabetes mellitus is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this Code section, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119. A 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is assigned for diabetes mellitus requiring 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 diabetic care providers, plus complications that would not be compensated if separately evaluated. Id. A 100 percent rating is assigned 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 not be compensated if separately evaluated. Id. The pertinent facts found in the medical evidence of record are discussed below. Having carefully considered the Veteran's claim in light of the evidence of record and the applicable laws and regulations, and as outlined in the reasons and bases below, the Board finds that the service-connected diabetes mellitus more closely approximates the criteria for the current 20 percent rating. 38 C.F.R. § 4.7. In this regard, there is no dispute the Veteran's service-connected diabetes mellitus has required the use of oral medications and insulin for control. What is in question, however, is whether the Veteran has a regulation of activities. In this regard, VA examination reports and outpatient treatment records do not show regulation of activities. Notably, in March 2006 the Veteran informed treatment providers that he remained active with his cleaning business four days a week. He played basketball on occasion and did some walking. The provider encouraged the Veteran to remain active and noted he informed the Veteran how activity helped lower his blood sugar. In April 2006, the Veteran indicated he was trying to get more activity. Also in April 2006, he informed treatment providers that when he had enough activity in the evening, he had good morning blood sugar levels. VA examination dated in June 2007 shows the Veteran remained on insulin, oral medication, and restricted diet. He had one episode of hypoglycemia per month. He had never been hospitalized for hypoglycemia and never had an episode of ketoacidosis. The examiner noted the Veteran's activities were not restricted as a result of his diabetes. Upon VA examination in August 2008, the Veteran continued to control his diabetes with insulin, oral medication and restricted diet. The Veteran's activities were not restricted as a result of his diabetes. VA treatment records dated in November 2008 reveal that providers recommended increasing moving such as chores and walking in place. It was suggested that he get 30 minutes of movement a day. The Veteran reported minimal movement due to other health problem limitations. In June 2009, July 2009, September 2009, and November 2009 he was encouraged to increase his activity level. He was performing cardiac exercise at that time for approximately 30 to 45 minutes at a time. In July 2009, the Veteran reported blood sugar levels had improved. In March 2010, the provider recommended increasing activity. In November 2010, he was counseled on exercise. In February 2011, he was educated on the importance of exercise. Upon VA examination in December 2011,though the Veteran reported a single episode of ketoacidosis or hypoglycemic reactions requiring hospitalization in the past 12 months, the examiner again found that there was no regulation of activities as part of medical management of diabetes mellitus. Despite finding progressive loss of strength, there was no progressive unintentional weight loss attributable to the diabetes. VA outpatient treatment records dated in January 2012 show the Veteran was working out on the treadmill. Upon VA examination in February 2013, there was again no regulation of activities as part of the medical management of the Veteran's diabetes mellitus. He saw his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemic reactions. He denied hospitalizations for ketoacidosis or hypoglycemia in the past 12 months. While he did have loss of strength, he did not have progressive unintentional weight loss attributable to diabetes. Based on the foregoing, there is no evidence of record to support an increase to 40 percent disabling. Specifically, there has been no persuasive evidence showing that the diabetes mellitus more nearly approximates a disability picture that includes a required regulation of activities. 38 C.F.R. § 4.119. In light of the above, there is no basis for assignment of an evaluation, to include "staged" ratings, other than the 20 percent disability rating which has been assigned. 38 C.F.R. § 4.7. Finally, the Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to management of the Veteran's diabetes mellitus, taking insulin and oral medication, and following a restricted diet, fall within the schedular criteria. The rating criteria contemplate a higher rating, which includes the above criteria but also requires a regulation of activities, but has not been found in the instant decision. See Diagnostic Code 7913. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The evidence of record shows that TDIU was granted effective from January 2009. See Rating Decision dated in November 2009. In April 2011, the RO awarded service connection for coronary artery disease and assigned a 100 percent evaluation effective from October 2008; TDIU was rendered moot as of that date. The Board considered whether TDIU was warranted prior to 2008; however, there was no evidence the Veteran was unemployable due soley to his diabetes mellitus. The Veteran was working in the cleaning business in 2006. He informed the VA examiner in 2008 that he only stopped worked when the business went under. Prior to that he worked for 20 years for General Motors. Hence, further consideration of TDIU is not warranted. ORDER An evaluation in excess of 20 percent for the service-connected diabetes mellitus is not warranted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs