Citation Nr: 1445708 Decision Date: 10/15/14 Archive Date: 10/22/14 DOCKET NO. 09-12 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to an increased rating for diabetes mellitus type 2, rated as 20 percent disabling prior to April 23, 2014, and 60 percent disabling from April 23, 2014. 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from December 1986 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a May 2011 hearing held at the RO. A transcript of that hearing is associated with the claims file. In January 2014, the Board remanded the claim for a higher evaluation for additional development. Review of the record reveals that there has been substantial compliance with the directives of the Board's January 2014 remand; an additional remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998). In August 2014, VA treatment records were added to the claims file. However, the Veteran's earlier June 2014 waiver indicated that it covered evidence associated with the claims file after the waiver was submitted. Therefore, the Board finds that a remand is not required for the Agency of Original Jurisdiction (AOJ) to consider this evidence. See 38 C.F.R. § 20.1304(c) (2013). As will be explained in more detail below, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, because this issue is not ready for appellate review it is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. Prior to April 23, 2014, the most probative evidence of record shows that the Veteran's diabetes mellitus type 2 was not manifested by restriction of activities. 2. From April 23, 2014, the most probative evidence of record shows that the Veteran's diabetes mellitus type 2 is not manifested by restriction of activities and ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a year or weekly visits to a diabetic care provider. 3. At all timed during the pendency of the appeal, the most probative evidence of record does not establish that other disabilities proximately related to the Veteran's diabetes mellitus type 2, are diagnosed and not already recognized by VA as being service-connected. CONCLUSION OF LAW The criteria for increased ratings for diabetes mellitus type 2, and/or for separate compensable ratings for complications of diabetes mellitus type 2, have not been met at all times during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence she is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that in an August 2006 letter, prior to the November 2006 rating decision, along with a letter dated in January 2014 the RO provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra. Moreover, even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with additional notice in the above letters followed by a readjudication of the claim in the June 2014 supplemental statement of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. Furthermore, even if the above letters did not provide adequate 38 U.S.C.A. § 5103(a) notice, the Board finds that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statement of the case, and the Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records as well as his post-service VA treatment records including his records from the San Antonio VA Medical Center in substantial compliance with the Board's remand directions. See 38 U.S.C.A. § 5103A (b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In this regard, the Veteran's treatment records from Dr. Fisher were not obtained while the appeal was in remand status. Nonetheless, the Board finds that another remand to request these records because in January 2014 the AOJ requested that the Veteran provide these records or authorize VA to do so and no response was received from him. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that "[t]he duty to assist is not always a one-way street." If a Veteran desires help with his claims, he must cooperate with VA's efforts to assist him). Moreover, the Veteran was provided VA examinations in November 2008, April 2014, and September 2006. The Board also finds that the examinations are adequate for rating purposes and substantially comply with the Board's remand directions because the Veteran's symptoms were described in sufficient detail, so that the Board's evaluation of the disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c) (4); Also see Stegall, supra; D'Aries, supra; Dyment, supra. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) or Acting Veterans Law Judge (AVLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board hearing the AVLJ noted the elements that were lacking to substantiate the Veteran's claims. The Veteran was assisted at the hearing by an accredited representative who with the AVLJ asked questions to ascertain the Veteran's disabilities' history and severity. The record does not reflect that pertinent evidence that would substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's VBMS claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran 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 files 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). The Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's diabetes mellitus type 2 is rated as 20 percent disabling prior to April 23, 2014, and as 60 percent disabling beginning that date, under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913. See rating decision dated in June 2014. In this regard, under Diagnostic Code 7913, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted 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 a diabetic care provider, plus complications that would not be compensable if evaluated separately. Id. The maximum 100 percent rating requires more than one daily injection of insulin, restricted diet, regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a 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. a. Prior to April 23, 2014 Prior to April 23, 2014, the Board finds that the most probative evidence of record does not establish that there was any physician-directed restriction on occupational and recreational activities. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). As to regulation of activities, the September 2006 and the November 2008 VA examiners both specifically indicated that the Veteran's diabetes did not cause any restriction of activities. Although the Veteran's representative asserted during the May 2011 Board hearing that the Veteran's having to change jobs to find work that had less physical requirements, and the Veteran asserted at a September 2013 VA outpatient visit that he was unable to overexert himself due to risk for hypoglycemia, the evidence does not establish that the Veteran was informed by his physician to do so, to stop exercising, or otherwise limit his activities. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Indeed, the Veteran reported at May 2011 and December 2011 VA outpatient visits that he exercised; albeit, with peripheral neuropathy pain in his feet after exercising. Moreover, although the clinical findings from the April 2014 VA examination are outside the appeal stage, that examiner also specifically found that the Veteran did not require regulation of activities as part of medical management of his diabetes. As to episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization, while VA treatment records noted a history of ketoacidosis or hypoglycemic reactions requiring hospitalizations, it was thereafter opined that they had not occurred in the year prior to each examination and the November 2008 VA examiner specifically noted that the only diabetic ketoacidosis episode requiring hospitalization had occurred in 1991, during service. Moreover, the Veteran also denied experiencing hypoglycemic episodes at August 2007 and September 2013 VA outpatient visits; hypoglycemia discussed at September 2013 and October 2013 VA outpatient visits was assessed as likely related to the Veteran's intake of alcohol in the evenings, up to 12oz of vodka per day. The Veteran's spouse wrote in her February 2009 statement that she observed the Veteran having hypoglycemic episodes twice a week; she has had to call for emergency services on several occasions, and notes that the ones occurring at night are manifested by seizures, convulsions, sweating, and trouble breathing. However, while the Veteran's spouse is competent to report on what she sees, the Board does not find that she is competent to provide a medical diagnosis as to what she sees because this required medical training which she does not have. See Davidson, supra. Moreover, the Board finds more probative the findings made by the treating healthcare providers in the Veteran's subsequent treatment records than the opinion by his spouse. See Black v. Brown, 10 Vet. App. 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Specifically, in a February 2009 VA treatment record indicated that the Veteran's episodes were more like tachycardia and shortness of breath, and he denied recurrent similar episodes. The Veteran was instructed to monitor his blood sugars during these episodes to rule out hypoglycemia, but these episodes were not diagnosed as such; an August 2009 VA treatment follow-up record noted that the palpitations had resolved after the Veteran reduced his caffeine intake and changed jobs, eliminating a stressor. While this record noted that the Veteran had recently "dowtitrated" (sic) insulin due to hypoglycemia, it did not reflect that the Veteran was hospitalized for any hypoglycemic episodes. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected diabetes mellitus type 2 did not cause restriction of activities and/or ketoacidosis or hypoglycemic reactions requiring hospitalizations at any time prior to April 23, 2014. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Accordingly, because the criteria for an increased rating under Diagnostic Code 7913 are conjunctive, such that restriction of activities and/or ketoacidosis or hypoglycemic reactions requiring hospitalizations are required for higher ratings under Diagnostic Code 7913, the Board finds that the claim for an increased rating for diabetes mellitus type 2 is denied at all times prior to April 23, 2014. See Hart, supra. b. From April 23, 2014 From April 23, 2014, the Board finds that the most probative evidence of record does not establish that there is restriction of activities and ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a year or weekly visits to a diabetic care provider. Camacho, supra. In this regard, the recently assigned increased rating to 60 percent disabling was based on the findings of the April 23, 2014, VA examination. However, the record does not reflect that the maximum 100 percent rating is warranted beginning that date or at any time during the pendency of the appeal. Specifically, the April 2014 VA examiner noted that the Veteran had no hospitalizations for ketoacidosis or hypoglycemic reactions over the last year, had not had progressive unintentional weight loss or loss of strength due to diabetes, and visited his diabetic care provider less than weekly. This medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. As to any claims by the Veteran and his spouse to the contrary, while they are competent to report on what they see, the Board does not find that they are not competent to provide a medical diagnosis as to what they see because this required medical training which she does not have. See Davidson, supra. Moreover, the Board finds more probative the findings made by April 23, 2014, VA examiner than these lay claims. See Black, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's service-connected diabetes mellitus type 2 did not cause restriction of activities and ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a year or weekly visits to a diabetic care provider at any time from April 23, 2014. See Owens, supra. Again, the criteria are conjunctive, such that more than one daily injection of insulin, restricted diet, regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations a year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength are required for the maximum rating under Diagnostic Code 7913. Therefore, since the most probative evidence of record shows that the Veteran's disability is not manifest by these required symptoms, the Board finds that the claim for an increased rating for diabetes mellitus type 2 is denied at all times from April 23, 2014. See Hart, supra. c. Other Concerns Complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating. See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note 1. However, the Board finds that all the complications of the Veteran's diabetes mellitus are already being used to support the current ratings for his diabetes mellitus or are the subject of unappealed rating decisions. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating a requirement to separately appeal downstream issues). The Board has reached this conclusion because the earlier January 2014 Board decision denied a compensable rating for the hypertension related to the Veteran's diabetes mellitus. Similarly, while the post-January 2014 Board remand record reflects that separate ratings have been awarded for right lower extremity peripheral neuropathy (20 percent), left lower extremity peripheral neuropathy (20 percent), dermatophytosis (0 percent), and bilateral cataracts (0 percent) as related to the Veteran's diabetes mellitus type 2, the Veteran has not appealed any of these rating decisions. Id. Furthermore, the Board finds that the Veteran's diabetes mellitus is not manifested by any other complications that warrant separate compensable ratings. In this regard, the record does not show that his diabetes mellitus causes diabetic retinopathy, diabetic nephropathy, and/or erectile dysfunction. In fact, a May 2013 VA record noted that in December 2012 an examination of the eyes did not reflect retinopathy. Similarly, an August 2013 VA endocrine consult record reflected that there were no clinical findings of nephropathy. Likewise, at the September 2006 VA examination the Veteran denied experiencing erectile dysfunction and the examiner noted that there was no evidence of diabetic nephropathy. Furthermore, the April 2014 VA examiner specifically opined that the Veteran's only complications from his service connected diabetes mellitus was his already service-connected right and left lower extremity peripheral neuropathy, dermatophytosis, and bilateral cataracts. This medical opinion is not contradicted by any other medical evidence of record. See Colvin, supra. Therefore, the Board finds that the evidence of record does not support additional separate compensable evaluations for complications of the Veteran's type 2 diabetes mellitus at any time during the pendency of the appeal. See Hart, supra. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The Board finds that the schedular ratings in this case are adequate. Ratings in excess of those assigned are provided for certain manifestations of the Veteran's service-connected diabetes, including restriction of activities, but the medical evidence reflects that those symptoms are not present. The diagnostic criteria also adequately describe the severity and symptomatology of the Veteran's diabetes Therefore, the Veteran's disability picture is contemplated by the Rating Schedule; no extraschedular referral is required even taking into account the totality of the Veteran's service connected disabilities in accordance with the recent decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 2013-7104, 2014 WL 3844196 (Fed. Cir. Aug. 6, 2014). The Board has also considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim the doctrine is not for application. 38 U.S.C.A. § 5107(b); See also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Increased ratings for diabetes mellitus type 2, as well as separate compensable ratings for complications of diabetes mellitus type 2, are denied at all times during the pendency of the appeal. REMAND As indicated above, the record raises a claim for a TDIU. See Rice, supra. Specifically, in a February 2009 statement the Veteran's spouse indicated that the Veteran's hypoglycemic episodes had caused him to miss work. The Veteran also testified during his May 2011 Board hearing that he had to change jobs in 2011 "because of his] diabetes, [he] can't do the physical type of work [he] had done before." Finally, the April 2014 VA examiner noted that the Veteran's diabetes mellitus type 2 impacted his ability to work, listing overnight work shifts and heavy exertional activity as types of employment he should avoid. Thus, the Board finds that the record raises a claim for a TDIU. However, the TDIU issue has not been developed for appellate review, to include providing the Veteran with notice of the laws and regulations governing a TDIU and obtaining a medical opinion. 38 U.S.C.A. §§ 5103, 5103A. Therefore, the Board finds that a remand to undertake this development is required. Accordingly, the issue is REMANDED to the AOJ for the following actions: 1. Provide the Veteran with notice of the laws and regulations governing entitlement to a TDIU in accordance with 38 U.S.C.A. § 5103A (West 2002) and Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. After physically or electronically associating any pertinent, outstanding records, forward the Veteran's claims file to a VA examiner, if possible, a vocational specialist, who must opine as to it is at least as likely as not that the Veteran is unable to obtain or retain substantially gainful employment due solely to one or more of his service-connected disabilities, to include the combined impact of his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disabilities. The examiner should fully explain any opinion(s) offered. The examiner should comment as to the additional limitations placed on the Veteran's employability; if the examiner finds that the Veteran is capable of moderate-duty or light-duty employment, he or she should comment as to whether this would still allow for substantially gainful employment. The examiner is reminded that marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). 3. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs