Citation Nr: 1342633 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 09-42 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to higher evaluations for diabetes mellitus, currently rated 20 percent prior to October 27, 2009, and 40 percent from that date. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD L. Zobrist, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1972. The increased rating matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision, which continued a 20 percent rating for diabetes mellitus. An interim March 2012 rating decision assigned a 40 percent rating from October 27, 2009. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating in excess of 40 percent for diabetes mellitus remains in appellate status. Here, the Veteran expressly stated that an earlier effective date for the 40 percent rating should be assigned, and this was developed as a separate issue. As discussed below, however, the rating for the entire appeal, including whether a rating in excess of 40 percent is warranted prior to October 27, 2009, is already on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly the issues have been recharacterized as the single issue listed on the first page of this decision. The Board notes that within the same month the Veteran and his agent sent in conflicting information with respect to whether the Veteran desired a Board hearing. In September 2013, the Veteran withdrew, in writing, his request for a hearing at the RO before a Veterans Law Judge and requested that his case be forwarded to the Board without further delay. The Board finds that the Veteran's statements on the subject take precedence over those of his agent, and the hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2013). FINDINGS OF FACT 1. Prior to January 13, 2009, the Veteran's diabetes mellitus is not shown to have required regulation of activities. 2. As of January 13, 2009, the Veteran's diabetes mellitus is shown to have required regulation of activities, but is not shown to have been manifested by 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. CONCLUSIONS OF LAW 1. Prior to January 13, 2009, the criteria for a rating in excess of 20 percent for service-connected diabetes mellitus were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 2. As of January 13, 2009, the criteria for a 40 percent rating, but no higher, for diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to an increased rating claim, the VCAA requirement is generic notice, that is, notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of this claim prior to the initial adjudication. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A January 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. This letter also provided notice regarding ratings and effective dates of awards. He has received the general-type notice described in Vazquez-Flores and has had ample opportunity to respond/supplement the record. It is not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records are associated with the claims files. The Veteran has provided treatment records and written statements prepared by his private physician, Dr. J.P. Thomas. His Virtual VA and VBMS files have also been reviewed. He has not identified any pertinent evidence that is outstanding. A fee-based examination was provided in March 2009. The Board finds that this examination is adequate for rating purposes, as the examiner expressed familiarity with pertinent medical history, and conducted a thorough medical examination, noting all findings necessary for consideration of the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). VA's duty to assist is met. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities; separate diagnostic codes identify the various disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Where an increase in the level of a service-connected disability is at issue, such as is the case with the Veteran's service-connected diabetes mellitus, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. In this case, the assignment of a 40 percent rating effective during the appeal period reflected a "staged rating." See Hart v. Mansfield, 21 Vet. App. 505 (2007) (If the disability has undergone varying and distinct levels of severity throughout the appeal period, staged ratings may be assigned.). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, the Veteran's service-connected diabetes mellitus has been rated as 10 percent disabling prior to October 16, 2007; 20 percent disabling from October 16, 2007, to October 26, 2009, and 40 percent disabling from October 27, 2009. Diagnostic Code 7913 provides a 10 percent rating for diabetes mellitus manageable by restricted diet only, and a 20 percent rating for diabetes mellitus requiring insulin and restricted diet or oral hypoglycemic agent and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is for application when 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 100 percent evaluation requires more than one daily injection of insulin, 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Medical evidence is required to show that occupational and recreational activities have been restricted such that the "regulation of activities" criterion is met. Camacho v. Nicholson, 21 Vet. App. 360 (2007); see also 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). The Veteran's claim for an increased rating for diabetes mellitus has remained pending since January 14, 2008, when he requested an evaluation in excess of 10 percent. In a March 2008 rating decision granted an increased rating, to 20 percent, from October 16, 2007, based on Dr. Thomas' records showing that the Veteran was prescribed an oral hypoglycemic agent, Glucophage, beginning that date. Given these records, the preponderance of the evidence is against a finding that insulin or an oral hypoglycemic agent was required for the Veteran's diabetes mellitus prior to October 16, 2007. For these reasons, a rating in excess of 10 percent is not warranted prior to October 16, 2007. The Veteran's submission of a written statement and additional medical records from Dr. Thomas, received in January 2009, constituted new and material evidence as to the severity of the Veteran's diabetes mellitus and, therefore, kept the March 2008 denial (of a rating in excess of 20 percent) from becoming final. See 38 C.F.R. § 3.156(b) (2013). In March 2012, the RO granted an increased 40 percent rating as of October 27, 2009, based on a letter of that date from Dr. Thomas attesting to his treatment of the Veteran's diabetes with insulin, restricted diet, and regulation of activities. In September 2013, the Veteran submitted another letter (dated July 24, 2012) from Dr. Thomas, indicating that the above cited course of treatment "started on . . . January 2009"; no more specific date was given. The paper claims folder does contain a January 13, 2009 written statement from Dr. Thomas which noted that the Veteran was under his care for diabetes mellitus and that he was "on regular exercise program that we are monitoring." The record also contains a medical treatment record from Dr. Thomas dated January 13, 2009, described by Dr. Thomas as an "initial evaluation of diabetic control." Based on this evidence, the Board finds that Veteran's diabetes mellitus more nearly approximated the criteria needed for a 40 percent rating on January 13, 2009. Prior to January 13, 2009, the record does not contain any evidence with respect to regulation of activities. In fact, given Dr. Thomas' July 2012 statement that treatment which included regulation of activities did not start until January 2009, the preponderance of the evidence is against a finding that the Veteran's diabetic treatment did not require regulation of activities prior to January 13, 2009. The only statement made by the Veteran with respect to the desired effective date of the 40 percent rating for diabetes mellitus was that "he contends he met the criteria [for a 40 percent evaluation] one year prior to his filing date." As noted above, the Board has found that the current appeal was initiated on January 14, 2008. One year prior to that date would be January 14, 2007. However, as discussed above, Dr. Thomas' statement is clear that the Veteran's diabetes mellitus did not require treatment which included regulation of activities until two years later, in January 2009. For these reasons, the Board finds that the preponderance of the evidence is against an effective date for the 40 percent rating earlier than January 13, 2009. The Board acknowledges that the record contains a March 2009 VA examination, which found no current restriction of activities. Such finding weighs against the award of a 40 percent rating prior to October 27, 2009. However, the Board finds that the statement from the Veteran's treating physician as to the nature of care required in January 2009, is highly probative evidence in favor of the requested relief. Resolving all doubt in the Veteran's favor, the Board finds that the medical evidence of record indicates that he was treated for his diabetes with insulin, restricted diet, and regulation of activities beginning on January 13, 2009. 38 C.F.R. § 4.3. The preponderance of the evidence is against a finding that the requirements for a rating in excess of 40 percent were met at any time during the appeal period. There is no evidence, and the Veteran does not assert, that he has been hospitalized for ketoacidosis or hypoglycemic reactions, that he requires twice a month visits to a diabetic care provider, or that he experiences complications that would not be compensable if separately evaluated. In fact, the regular treatment records do not show such symptoms. A July 2009 treatment record specifically noted "no hypoglycemic episodes." Thus, the Board finds that the schedular criteria for a disability rating of the next higher rating of 60 percent for diabetes mellitus have not been met. In view of the fact that the 60 percent criteria have not been met, the additional requirements for the assignment of a 100 percent rating are clearly not for assignment in this case. Furthermore, the Board has considered whether extraschedular consideration is warranted. The discussion above reflects that the symptoms of the Veteran's diabetes mellitus are contemplated by the applicable rating criteria. The Board acknowledges the Veteran's statements in his substantive appeal that he is unable to perform some aspects of his occupation as a golf professional due to limitations on walking caused by his diabetes mellitus. Restriction of activities is specifically contemplated in the 40 percent rating assigned. Further, November 2011 treatment records show that the Veteran's occupation remains a professional golfer and that he is doing well with medication. The schedule is intended to compensate for average impairments in earning capacity resulting from service- connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above. In the absence of exceptional factors associated with diabetes mellitus, the Board finds that the criteria for submission for consideration of the assignment of an extraschedular rating pursuant are not met. However, the record does not show that this disability has markedly interfered with his employment status beyond that interference contemplated by the assigned rating, and there is no evidence that this disability has necessitated any period of hospitalization during the pendency of this appeal. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not indicated. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). A total disability rating based on individual unemployability (TDIU) is an element of all appeals of an increased 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). While the March 2009 VA examination report indicated that the Veteran was not presently working, the Veteran's statements clearly indicate that he is working and has maintained his job for many years. In a May 2009 statement he reported that he worked at a golf course and had been working there for 35 years. November 2011 treatment records from Dr. Thomas also reflect his occupation as a professional golfer. As the preponderance of the evidence shows that the Veteran is has been employed for many years, consideration of TDIU is not before the Board. ORDER A rating in excess of 20 percent for diabetes mellitus prior to January 13, 2009, is denied. A rating of 40 percent, but no higher, for diabetes mellitus is granted, effective January 13, 2009, subject to the governing law and regulations pertaining to the payment of monetary benefits. ____________________________________________ M. C. Graham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs