Citation Nr: 1525827 Decision Date: 06/16/15 Archive Date: 06/26/15 DOCKET NO. 06-17 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Andrew R. Rutz, Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Parke, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to December 1985. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Board remanded the claim for additional development and adjudicative action. The Veteran testified in support of these claims during a hearing held at the RO before the undersigned Veterans Law Judge in March 2007. This appeal was processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The Veteran's service-connected diabetes mellitus, type II, was manifested by symptomatology approximating the criteria for a 40 percent rating during the entire period on appeal. CONCLUSION OF LAW The criteria for an evaluation of 40 percent, but no more, are met for the period on appeal. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Court has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2014) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a letters sent in May 2004, March 2005, May 2006, and January 2008. All available relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes the Veteran's Report of Separation Form (DD Form 214), service treatment records, service personnel records, VA medical records, private medical records, and lay statements from the Veteran. The Veteran has not indicated that he has any further evidence to submit to VA or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The RO substantially complied with the Board's May 2014 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The RO readjudicated the Veteran's claim and provided him with a Supplemental Statement of the Case. The RO has complied with the Board's instructions. All necessary assistance has been provided to the Veteran. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is unaware of any such evidence. Merits of the Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.20 (2014). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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 to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield,21 Vet. App. 505 (2007). Diagnostic Code 7913 provides for a 10 percent rating for diabetes mellitus that is manageable by restricted diet only. A rating of 20 percent may be assigned for diabetes mellitus when insulin and a restricted diet or when an oral hypoglycemic agent and a restricted diet are required. A rating of 40 percent may be assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. "Regulation of activities" is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." 38 C.F.R. § 4.119. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996). A rating of 60 percent may be 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 a diabetic care provider, plus complications that would not be compensable if separately evaluated. After a review of all the evidence, the Board finds that the evidence is at least in equipoise regarding the Veteran's appeal for an increased rating in excess of 20 percent for service-connected diabetes mellitus. The Veteran's September 2014 VA medical examination showed that the Veteran does not require regulation of activities as part of the medical management of his diabetes mellitus, type II. However, the Veteran has submitted a private medical record from D.M., DO, stating that the Veteran should not be driving if his blood sugar is above 200 or below 60. A July 2010 private medical record from Dr. A.T. shows that the Veteran's blood sugar was over 200. The evidence is at least in equipoise as to whether the Veteran's diabetes mellitus, type II, requires regulation of activities, and the benefit of the doubt rules applies. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's private and VA medical records do not reflect any hospitalizations for ketoacidosis or hypoglycemic reactions. During the Veteran's September 2014 VA medical examination, he reported no episodes of hospitalization in the last 12 months and that he visited his diabetic care provider for episodes of ketoacidosis and hypoglycemia less than two times per month. Therefore, the Veteran is not entitled to a 60 percent disability rating for his diabetes mellitus, type II. Extraschedular Rating The Board has considered whether referral for consideration of extraschedular ratings is warranted for the Veteran's diabetes mellitus, type II. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). 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 a veteran'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 law, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran'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 a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran'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) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran'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, specifically a determination of whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Id. Regarding the Veteran's service-connected diabetes mellitus, turning to the first step of the extraschedular analysis, for the entire rating period on appeal, the Board finds that all the symptomatology and impairment caused by the Veteran's diabetes mellitus is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 7913, specifically provide for disability ratings based on a combination of history, symptoms, and clinical findings. In this case, considering the lay and medical evidence, during the rating period on appeal, the Veteran's diabetes mellitus has been manifested by symptoms controlled by insulin, medication, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119, Diagnostic Code 7913. As the schedular evaluations contemplate the symptomatology of the Veteran's diabetes mellitus, the Board need not determine whether there is an exceptional disability picture that exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). In the absence of evidence that the schedular rating criteria are inadequate to rate the Veteran's diabetes mellitus, the Board is not required to remand that issue to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See also Bagwell v. Brown, 9 Vet. App. 237, 238-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A rating of 40 percent, but no greater, for diabetes mellitus, type II for the entire period on appeal is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs