Citation Nr: 1606568 Decision Date: 02/22/16 Archive Date: 03/01/16 DOCKET NO. 07-11 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a genitourinary disorder, to include as due to exposure to an herbicidal agent, to also include as secondary to service-connected disability. 2. Entitlement to service connection for peripheral neuropathy, to include as due to exposure to an herbicidal agent, to also include as secondary to service-connected disability. 3. Entitlement to an initial rating in excess of 10 percent for diabetes mellitus, type II. 4. Entitlement to a total rating based on individual unemployability due to service-connected disability prior to July 16, 2012. 5. Entitlement to an effective date prior to July 16, 2012, for the award of special monthly compensation at the housebound rate. 6. Entitlement to an effective date prior to July 16, 2012, for the award of basic eligibility for Dependents' Educational Assistance under Chapter 35, Title 38, United States Code. REPRESENTATION The Veteran is represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to January 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The issue of entitlement to service connection for alcohol abuse, to include as secondary to service-connected posttraumatic stress disorder (PTSD), has been raised by the record, but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. 38 C.F.R. § 19.9(b) (2015). With the exception of the claim of entitlement to an initial rating in excess of 10 percent for diabetes mellitus, type II, the issues on appeal are addressed in the Remand portion of this decision. FINDING OF FACT Throughout the pendency of this appeal, the Veteran's diabetes mellitus, type II, required a restricted diet, but did not require the use of insulin or a hypoglycemic agent. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and to assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The Veteran's claim of entitlement to an increased evaluation for his service-connected diabetes mellitus, type II, arises from his disagreement with the initial evaluation assigned to this disability following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required with respect to this claim. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records, as well as the documentation associated with his application for benefits from the Social Security Administration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also afforded an adequate VA examination in April 2015. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examiner took into account the Veteran's statements, reviewed the relevant treatment records, which allowed for a fully-informed evaluation of the claimed disability. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In September 2011, the Veteran submitted a claim of entitlement to service connection for diabetes mellitus, type II, to include a due to exposure to an herbicidal agent. In an August 2012 rating decision, service connection was granted for diabetes mellitus, type II, on a presumptive basis due to the Veteran's presumed in-service exposure to an herbicidal agent. See 38 C.F.R. §§ 3.307, 3.309 (2015). The RO assigned an initial 10 percent rating to the Veteran's diabetes mellitus, type II, effective September 28, 2011. The RO's decision was predicated on the evidence of record, including VA treatment records, which included a current diagnosis of diabetes mellitus, type II. The RO did not provide the Veteran with a VA examination prior to issuing the August 2012 rating decision. The Veteran subsequently perfected an appeal, seeking an initial rating in excess of 10 percent. In the January 2014 remand, the Board determined that a remand was required in order to provide the Veteran with a VA examination so that the severity of the Veteran's diabetes mellitus, type II, could be ascertained. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 124 (1991). While the Veteran's claim was in remand status, the Veteran was provided a VA examination in March 2014. The RO continued the initial rating of 10 percent for the Veteran's diabetes mellitus, type II, in a September 2014 supplemental statement of the case before returning the claim to the Board. In February 2015, the Board determined that the March 2014 VA examination was inadequate for purposes of adjudicating the Veteran's claim. Consequently, the Board remanded the claim in order to provide the Veteran with another VA examination. In April 2015, the Veteran underwent the requested VA examination. Thereafter, the RO continued the 10 percent rating assigned to the Veteran's diabetes mellitus, type II, in an April 2015 supplemental statement of the case. The RO then remitted the Veteran's claim to the Board for further appellate review. The examiner reviewed the Veteran's relevant records and medical history and provided an opinion as to the salient issues presented by the Veteran's claim. As such, the Board finds that the RO substantially complied with Board's remand directives and, thus, a remand for corrective actions is not warranted. In making this decision, the Board acknowledges the Veteran's attorney's assertion that the April 2015 VA examination is inadequate because the examiner failed to address whether the Veteran's diabetes mellitus, type II, required insulin. However, the examiner determined, through clinic test results, that the Veteran did not satisfy the diagnostic criteria for diabetes mellitus, type II. Without a diagnosis of diabetes mellitus, type II, a determination as to whether the Veteran requires insulin to treat his diabetes mellitus, type II, is moot. Thus, the April 2015 VA examination is not inadequate, and the Board will address the merits of the claim herein. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2015). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). Under Diagnostic Code 7913, when diabetes mellitus, type II, is manageable by restricted diet only, a 10 percent rating is warranted. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 20 percent rating is warranted when diabetes mellitus, type II, requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. Id. Diabetes mellitus, type II, requiring insulin, restricted diet, and regulation of activities is rated as 40 percent disabling. Id. Diabetes mellitus, type II, 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 rated, is rated as 60 percent disabling. Id. Diabetes mellitus, type II, requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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 rated, is rated as 100 percent disabling. Id. 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. Id. at Note (1). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. Throughout the pendency of this appeal, the Veteran's service-connected diabetes mellitus, type II, has already been assigned a 10 percent rating. This rating was based on the RO's finding that the Veteran's diabetes mellitus, type II, required a restricted diet. Thus, in order for a higher rating to be assigned, the evidence must at least show that his diabetes mellitus, type II, requires insulin or an oral hypoglycemic agent. The evidence of record demonstrates that diabetes mellitus, type II, was first diagnosed in August 2011. This diagnosis was derived from the results of a blood test. In March 2014, the Veteran underwent a VA examination to ascertain the severity of his diabetes mellitus, type II. In pertinent part, the examiner was asked to indicate the types of treatment the Veteran required to treat his diabetes mellitus, type II. In response, the examiner indicated that the Veteran's diabetes mellitus, type II, was managed by a restricted diet. No other forms of treatment were indicated. Although the Board determined that this VA examination was inadequate for purposes of adjudicating the Veteran's claim, this finding applies to the examination in its entirety, not individual findings contained therein. Thus, the Board finds that the March 2014 examiner's determination that the Veteran's diabetes mellitus, type II, was managed by a restricted diet, and did not require insulin or a hypoglycemic agent, to be probative. In April 2015, the Veteran underwent another examination to ascertain the severity of service-connected disabilities. The examiner was also asked to indicate the types of treatment that Veteran required for his diabetes mellitus, type II. The examiner indicated that the Veteran did not require any treatment. Indeed, the examiner determined that the Veteran did not have diabetes mellitus, type II. In so doing, the examiner referenced November 2014 clinical findings that show that the diagnostic criteria for diabetes mellitus, type II, was not satisfied. The examiner provided the following opinion: [T]he [V]eteran in fact does not meet any established criteria for diabetes. In spite of his rating and the listed diagnosis, from a medical stand point the [V]eteran does not have diabetes. Consequently, the preponderance of the evidence of record does not demonstrate that the Veteran's diabetes mellitus, type II, met the criteria for an initial rating in excess of 10 percent at any time during the pendency of this appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.119, Diagnostic Code 7913. Thus, the Board finds that the objective medical evidence of record does not support an initial evaluation in excess of 10 percent for the Veteran's diabetes mellitus, type II. Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2015). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but, nevertheless, would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2015). 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, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the applicable criteria reasonably describe the Veteran's disability level and symptomatology, the Rating Schedule contemplates then the Veteran's disability picture, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the disability pictures associated with the Veteran's service-connected diabetes mellitus, type II, are not so unusual or exceptional in nature as to render the already assigned rating inadequate. The Veteran's service-connected diabetes mellitus, type II, is evaluated as disability of the endocrine system pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id. To manage his diabetes mellitus, type II, the Veteran was directed to follow a restricted diet. However, whether this need to follow a diet persisted throughout the pendency of the appeal is, at best, unclear. This lack of clarity is illustrated by the April 2015 VA examiner's opinion that the Veteran did not require any treatment, including a restricted diet, for his sub-diagnostic diabetes mellitus, type II. At no point during the pendency of this appeal did the Veteran's diabetes mellitus, type II, require either insulin or a hypoglycemic agent. When comparing the severity of this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the disability picture represented already assigned rating. Ratings in excess of those already assigned are provided for certain manifestations of diabetes mellitus, type II, but the evidence demonstrated that those manifestations were not present for any distinct period during the pendency of this appeal. The criteria for the assigned rating reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board concludes that the schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required. See 38 C.F.R. § 4.119, Diagnostic Code 7913; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Generally, a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. See Johnson v. Shinseki, 26 Vet. App. 237, 246 (2013) (en banc). However, in this case, there are no additional symptoms that have not been attributed to a specific service-connected disability or a specifically nonservice-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning an initial rating in excess of 10 percent for the Veteran's diabetes mellitus, type II, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating in excess of 10 percent for diabetes mellitus, type II, is denied. (CONTINUED ON NEXT PAGE) REMAND In the Introduction, the Board referred to the RO a claim of entitlement to service connection for alcohol abuse, to include as secondary to the Veteran's service-connected PTSD. In an October 2015 brief, the Veteran's attorney asserts that the Veteran's peripheral neuropathy and genitourinary disability are etiologically related to his long history of alcohol abuse. The Board finds that the above-captioned claims of entitlement to service connection for a genitourinary disability and peripheral neuropathy are inextricably intertwined with the referred claim, as are the Veteran's claims of entitlement to TDIU prior to July 16, 2012; to an effective date prior to July 16, 2012 for the award of special monthly compensation at the housebound rate; and for an effective date prior to July 16, 2012 for the award of basic eligibility for Dependent's Educational Assistance under Chapter 35, Title 38, United States Code. As such, remanding these claims is required for contemporaneous consideration. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is remanded for the following action: 1. The RO must undertake all appropriate development and consideration of the reasonably raised and referred claim of entitlement to service connection for alcohol abuse, to include as secondary to the Veteran's service-connected PTSD. 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraph above, the claims must be adjudicated. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs