Citation Nr: 1341011 Decision Date: 12/12/13 Archive Date: 12/20/13 DOCKET NO. 11-06 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected diabetes mellitus, type II associated with herbicide exposure. 2. Entitlement to an initial disability rating in excess of 10 percent for service- connected tinnitus. 3. Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran-Appellant ATTORNEY FOR THE BOARD R. Tyson, Associate Counsel INTRODUCTION The Veteran-Appellant (herein referred to as Veteran) served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision issued by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at an October 2011 Travel Board hearing before the undersigned at the RO. A hearing transcript is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. The issue of the Veteran's entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office via the Appeals Management Center (AMC) located in Washington, DC. FINDINGS OF FACT 1. Prior to July 20, 2011, the Veteran had diabetes mellitus that was manageable by restricted diet only. 2. As of July 20, 2011, the Veteran had diabetes mellitus that was manageable by an oral hypoglycemic agent in addition to a restricted diet. 3. The Veteran has a history of bilateral tinnitus. CONCLUSIONS OF LAW 1. Prior to July 20, 2011, an initial disability rating in excess of 10 percent for service-connected diabetes mellitus is not warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5126 (West 2002 and West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2013). 2. As of July 20, 2011, an initial disability rating of 20 percent and no higher for service-connected diabetes mellitus is warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5126 (West 2002 and West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2013). 3. During the entire appeals period, an initial disability rating in excess of 10 percent for the Veteran's service-connected tinnitus is not warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107, 5126 (West 2002 and West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.87, Diagnostic Code 6260 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Increased Rating for Diabetes Mellitus In a June 2010 rating decision, the RO granted the Veteran service connection for diabetes mellitus, type II associated with herbicide exposure that is the subject of this appeal. The RO assigned an initial 10 percent rating effective January 6, 2010, the date of his claim. The Veteran contends that he is entitled to a higher rating because he does not have a family history of this disease and it caused cataracts. The Board notes that the Veteran filed a separate service connection for bilateral cataracts, which was granted in an October 2011 rating decision with a 0 percent disability rating effective January 6, 2010. While the Board acknowledges the Veteran's contentions, it is bound to rate this disease based on the criteria set forth in 38 C.F.R. § 4.119, Diagnostic Code 7913 and not solely based on the Veteran's contentions. In considering all relevant evidence of record, the Board finds the Veteran entitled to a continued 10 percent rating until July 20, 2011. However, on July 20, 2011, the Board finds the Veteran's diabetes required a hypoglycemic agent in addition to a restricted diet, which warrants a higher 20 percent disability rating. Diabetes mellitus is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913. A 10 percent disability rating is assigned when diabetes is manageable by a restricted diet only. A 20 percent disability rating is assigned when diabetes requires insulin and restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent disability rating is assigned when diabetes requires insulin, a restricted diet, and regulation of activities such as the avoidance of strenuous occupational and recreational activities. A 60 percent disability rating is assigned when diabetes requires insulin, a 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 100 percent disability rating is assigned when diabetes requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least 3 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. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating under Diagnostic Code 7913. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913, Note (1). The Veteran has a non-insulin dependent form of diabetes, which was first diagnosed in August 2005 after blood tests revealed elevated hemoglobin A1c levels of 7 percent. Hemoglobin A1c is a blood test that shows the average level of blood sugar over the past 2 to 3 months. Normal levels are considered between 4 and 6 percent. To manage his blood sugar, the Veteran began using a restricted diet. He limited his intake of sweets such as soda and candy. He also tried to adhere to a 2,000 caloric intake. Although his primary care physician also recommended regular exercise to manage his blood sugars, the Veteran did not comply because of the physical demands of his full-time job. With the restricted diet, the Veteran saw a steady decline in his blood sugar levels. By 2006, the Veteran's hemoglobin A1c levels were at nearly normal levels. In April 2006 the Veteran tested at 6.5 percent and by October 2006, his levels dropped an additional .3 points to 6.2. Throughout the remainder of 2006 through 2009, the Veteran experienced brief periods of elevated hemoglobin levels but gained control with continued restricted diet and with the addition of regular exercise by September 2008. The Veteran's continued diabetic management with diet and exercise was evident during his May 2010 compensation and pension examination. At the time of the examination, the Veteran reported only using diet and exercise to manage his diabetes. The VA examiner noted on the report that the Veteran's hemoglobin A1c levels were at near normal levels between 6.2 and 6.5 with the use of these conservative measures sans medication. Things changed for the Veteran in July 2011. During a July 2011, follow-up visit with his primary care physician, the Veteran had a hemoglobin A1c level of 7.4. The Veteran's primary care physician noted that the Veteran's hemoglobin levels were no longer managed by diet and exercise, and subsequently prescribed the Veteran metformin, a drug used to help lower and control blood sugars that are not controlled by diet and exercise alone. However, within a month, the Veteran's primary care physician switched out metformin to glipizide due to negative side effects. The addition of medication to the Veteran's diabetes treatment regimen in addition to the Veteran's restricted diet and exercise regimen necessitates a higher 20 percent disability rating. Since the Veteran has a non-insulin dependent form of diabetes, he is not entitled to consideration for the next higher 40 percent disability rating, which requires the Veteran take insulin shots in addition to other measures. The Board next considered whether extraschedular consideration is warranted for the Veteran's service-connected diabetes mellitus as well as his tinnitus. Currently, the Veteran is assigned the maximum schedular disability rating for tinnitus, 10 percent. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step, a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In comparing the Veteran's disability level and symptomatology of diabetes mellitus to the rating schedule, the degree of disability presented throughout the entire period including the favorable portion of the appeals period is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. With regard to diabetes, the rating schedule focuses on type of treatment needed to manage this condition including number of hospitalizations in the high rating criteria. The Veteran's treatment of diet and exercise is noted in rating criteria as well as the later addition of medication for control. With regard to the Veteran's tinnitus, the record demonstrates that he has the disorder based upon the Veteran's lay statements and the May 2010 compensation and pension examination report. The symptomatology of the Veteran's bilateral tinnitus is fully encompassed by the rating criteria. Even if the Veteran's tinnitus was not contemplated by the rating criteria, his tinnitus has not required hospitalization at any time during the appeal period or been reported by the Veteran or any other source to markedly interfere with employment at any point during the treating history. Accordingly, in the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) for either the Veteran's diabetes mellitus or tinnitus are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). VA Duties to Notify and Assist After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions in this case with respect to the issue herein decided. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran is represented by the Veterans of Foreign Wars of the United States, an organization presumed to have knowledge of what is necessary to substantiate a claim for higher initial ratings for diabetes mellitus and tinnitus. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of the January 2010 VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Regarding VA's duty to assist, the VA obtained evidence pertaining to the Veteran's claim including service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the VA examinations, the Board finds that the Veteran was provided VA examinations to evaluate his tinnitus and diabetes mellitus in May 2010, which are deemed adequate for rating purposes. Furthermore, additional evidence submitted by the Veteran provided additional basis for rating the Veteran's diabetes mellitus and tinnitus. Accordingly, there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.159, 3.326, 3.327; see also Barr v. Nicholson, 21 Vet. App. 303 (2007). ORDER Entitlement to an initial compensable disability rating of 20 percent for service-connected diabetes mellitus is warranted as of July 20, 2011, subject to the applicable laws and regulations governing the payment of monetary awards. Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is not warranted. REMAND The Veteran testified at the October 2011 Travel Board hearing that his hearing has worsened. The Veteran's last audiological test was in May 2010. Since the Veteran reports increased severity in his hearing disability since last audiolgical test, the Board finds an additional examination is warranted to ascertain the current nature and severity of the Veteran's bilateral hearing loss. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA audiology examination to determine the current nature and severity of his bilateral hearing loss. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the Veteran's claims file was reviewed in connection with the examination. All indicated studies and tests deemed necessary by the examiner should be accomplished. Testing should be conducted to determine the current severity of the Veteran's hearing loss and should include the use of the Maryland CNC (controlled speech discrimination) test and pure tone audiometry test. The examiner should fully describe any functional effects caused by the Veteran's hearing loss disability in the final examination report. A rationale for any opinion expressed should also be provided. If the examiner cannot complete audiological testing or speech recognition testing for any reason, he/she should provide a detailed explanation for why such testing cannot be completed. 2. Thereafter, the issue on appeal should be readjudicated, to include consideration of all pertinent private and VA audiological treatment records and audiogram reports of record. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655. 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