Citation Nr: 1410161 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-34 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased initial rating for diabetes mellitus type II, rated at 20 percent from August 15, 2005 to August 30, 2007, 40 percent from August 31, 2007 to December 17, 2008, and 20 percent from December 18, 2008 to the present. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1967 to February 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2006 and an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran's claims were previously remanded by the Board in May 2010 with instructions to provide the Veteran a supplemental statement of the case (SSOC). The RO provided such SSOC in July 2010. As such, there has been substantial compliance with the previous remand, and consideration of the Veteran's appeals may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to August 31, 2007, the Veteran's diabetes mellitus was well controlled with the use of insulin and oral hypoglycemic agent, as well as a restricted diet, but did not require regulation of activities. 2. Since August 31, 2007, the Veteran's diabetes mellitus has not been well controlled, even with the use of insulin and oral hypoglycemic agent, and a restricted diet, and, because of this, he has had to regulate his activities. 3. There is no medical evidence the Veteran has experienced episodes of ketoacidosis or hypoglycemic reactions, or that he has been hospitalized or required twice a month visits to a diabetic care provider due to his diabetes. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation higher than 20 percent for diabetes mellitus between August 15, 2005, and August 30, 2007, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 2. The criteria for entitlement to an initial evaluation higher than 40 percent for diabetes mellitus between August 31, 2007, and December 17, 2008, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 3. The criteria for entitlement to an initial evaluation of 40 percent, but not greater, for diabetes mellitus have been met since December 18, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis In deciding the Veteran's claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating, i.e., an assignment of different ratings for distinct periods of time. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In an October 2006 rating decision, the RO granted service connection and assigned an initial 20 percent evaluation for diabetes mellitus, pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, effective August 15, 2005. In a July 2008 rating decision, the RO increased the Veteran's evaluation for diabetes mellitus to 40 percent, effective August 31, 2007. Subsequently, in a March 2009 rating decision the RO decreased the Veteran's evaluation to 20 percent for his service connected diabetes mellitus. Under Diagnostic Code 7913, a 20 percent disability evaluation is assigned for diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. The Veteran contends that he is entitled to a rating in excess of 20 percent. Specifically, he asserts that his service-connected diabetes mellitus more closely approximates the criteria for a 40 percent or higher evaluation. A 40 percent evaluation is contemplated for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. "Regulation of activities" is defined in Diagnostic Code 7913 as "avoidance of strenuous occupational and recreational activities." Id. A 60 percent evaluation applies if diabetes mellitus 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. Id. A 100 percent disability evaluation is assigned if diabetes mellitus 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 three 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. Id. The Veteran was diagnosed with diabetes in 2002 and has been treated at the VA since that time for his disability. The RO assigned an initial disability rating of 20 percent from August 15, 2005 to August 30, 2007. The Board finds a higher rating was not warranted for this time period. In 2005, the medications prescribed for the Veteran's diabetes were increased, and he was taking insulin and oral medications. However, it was noted in March 2006 that there were no complications, and his diabetes was well controlled. Lab results from October 2006 showed glucose levels within the normal range. In March 2007, it was again noted that his blood sugars were well controlled. Therefore, the medical evidence for this time period showed that his diabetes was stable and controlled with medications, and there were no suggestions from the medical providers that the Veteran needed to regulate his physical activities. A higher rating is simply not warranted. To this extent, his claim for an increase is denied. The RO increased the rating to 40 percent as of August 31, 2007, which was the date of a VA outpatient treatment record showing his condition had worsened. At that visit, his blood sugars were elevated, and his medications were increased. In November 2007, the Veteran presented at the VA for an endocrine system examination. At this time, the Veteran was taking both insulin and oral hypoglycemic medication. The examiner noted that he had episodes of hypoglycemic reactions or ketoacidosis, but that they did not require hospitalization. The Veteran was instructed to follow a restricted diet and to restrict strenuous activities. It was noted that he had limitations in his job due to the need to check his blood sugars, and he had a lack of stamina and increased absenteeism due to his diabetes. In March 2008, his medications were increased as his blood sugars were still running high during the day. In September 2008, labs showed elevated glucose levels, it was noted that his diabetes was not well controlled with medications, and his medications were changed again. In December 2008, the Veteran underwent a VA Examination for his diabetes mellitus. The examination revealed that the Veteran's diabetes is poorly controlled and he has hypertension and left extremity sensory neuropathy associated with his diabetes. The objective evidence of record did not reveal any hypoglycemic reactions ketoacidosis, the Veteran was still required take both an oral hypoglycemic medication and insulin, as well as maintain a restricted diet, but the examiner stated that he was not prohibited from performing strenuous activities. The RO decreased the Veteran's rating to 20 percent, based on the VA examiner's statement that the Veteran was not prohibited from performing strenuous activities. In assigning disability ratings, it is important to examine the whole medical record, as different examiners, at different times, may not describe the same disability using the same language. 38 C.F.R. § 4.2. To reduce the rating, it must be shown that the condition had actually improved, as opposed to the VA examiner using different language than the prior examiner. Here, there is no persuasive evidence that the Veteran's diabetes had actually improved. It's hard to believe that he went from uncontrolled diabetes in the September/October 2008 time period to sudden improvement in December 2008. Furthermore, although there are not many treatment records in the file that post-date the VA examination, they are also not persuasive that his condition had actually improved. A VA treatment note from March 2010 states his diabetes affects the Veteran in many ways. His schedule and activities are regulated by his neuropathy, which is due to his diabetes mellitus, his insulin regimen and his other medications. The RO interpreted this statement as saying his activities were regulated due to his neuropathy, but the doctor clearly said the limitations were due to neuropathy, his insulin regimen, and medications. The insulin regimen is due to the fact his blood sugars remain widely varied. A September 2009 VA treatment record indicated his glucose levels were too low, while a June 2010 record (after he had a dizzy spell and fell) showed his glucose levels were high. The Board has considered all the medial evidence, reviewed the Veteran's entire claims file, and has determined that his disability picture continued to more closely approximate a 40 percent rating after December 2008 (the date the RO reduced it to 20 percent). Therefore, a 40 percent rating will now be assigned from August 31, 2007, to the present, and this represents a partial grant of the Veteran's appeal. However, the Board concludes a rating greater than 40 percent is not warranted for any time period. The evidence of record does not demonstrate a disability picture that more closely approximates a 60 or 100 percent evaluation. There is no indication the Veteran has experienced episodes ketoacidosis or hypoglycemic reactions necessitating hospitalization. Additionally, there is no evidence of record that he requires twice a month visits to his diabetic care provider. Additional Considerations The discussion above reflects the notion that the symptoms and effects of the Veteran's diabetes mellitus, namely oral medication, insulin, restricted diet and restricted activities, are fully contemplated by the applicable rating criteria in the rating schedule. Therefore, 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 extra-schedular rating is unnecessary. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). Duties to Assist and Notify When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran received notification prior to the initial unfavorable agency decision through a December 2005 letter, as well as subsequent letters. The Veteran's claim was subsequently readjudicated, most recently in a July 2010 supplemental statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2013). Service treatment records have been associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. See 38 C.F.R. § 3.159(c)(4). The Veteran was afforded VA examinations in November 2007 and December 2008 for his diabetes mellitus. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The VA examinations were factually informed, medically competent and responsive to the issue. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. ORDER Entitlement to an initial evaluation higher than 20 percent for diabetes mellitus between August 15, 2005, and August 30, 2007, is denied. Entitlement to an initial rating higher than 40 percent for diabetes mellitus between August 31, 2007, and December 17, 2008, is denied. Entitlement to an initial rating of 40 percent, but no higher, for diabetes mellitus is granted from December 18, 2008, to the present, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs