Citation Nr: 1646017 Decision Date: 12/08/16 Archive Date: 12/21/16 DOCKET NO. 11-18 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to March 4, 2014, and in excess of 60 percent as of March 4, 2014, for service-connected diabetes mellitus type II (diabetes). 2. Entitlement to a rating in excess of 10 percent prior to December 7, 2013, and from February 1, 2014, through March 3, 2014, for service-connected coronary artery disease with cardiac valvulopathy (CAD). 3. Entitlement to a compensable rating for service-connected residuals from transient ischemic attack associated with hypertension (TIA). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from November 1981 to January 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2011, the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for October 5, 2016, in Washington, D.C. A review of the file indicates that the Veteran submitted a request to withdraw the hearing on September 20, 2016. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2015). FINDINGS OF FACT 1. The evidence of record does not show that treatment of the Veteran's diabetes required regulation of activities prior to March 4, 2014, and as of March 4, 2014 the Veteran's diabetes has not required regulation of activities, at least three hospitalizations per year, or weekly visits to a diabetic care provider. 2. The evidence of record does not show that treatment of the Veteran's CAD has resulted in a workload of greater than 5 METs but not greater than 7 METs or evidence of cardiac hypertrophy of cardiac dilation prior to December 7, 2013, or from February 1, 2014, through March 3 3. The evidence of record does not show that the Veteran's TIA results in any residuals that warrant a compensable rating. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to March 4, 2014, and in excess of 60 percent from March 4, 2014, for diabetes have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code 7913 (2015). 2. The criteria for a rating in excess of 10 percent prior to December 7, 2013, and from February 1, 2014, through March 3, 2014, for CAD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2015). 3. The criteria for a compensable rating for TIA are not met. 38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8046 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159. In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and private treatment records have been obtained. Additionally, the Veteran was scheduled to testify before the Board, but he withdrew his hearing request. The Veteran was also provided VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiners provided the information necessary to rate the service-connected disabilities on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a 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). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes In March 2008, the Veteran filed his claim for an increased rating for his diabetes, which was denied by September 2008, September 2009, March 2010, and August 2010 rating decisions. He was granted an increased rating of 60 percent effective March 4, 2014, by a May 2016 rating decision. He disagrees with the ratings assigned and asserts he is entitled to higher ratings. The Veteran's diabetes is rated under Diagnostic Code 7913. A 20 percent rating is assigned when diabetes requires either insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned when diabetes mellitus requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes that 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 rating is assigned for diabetes that requires more than one daily injection of insulin, 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Competent medical evidence is required to establish "regulation of activities," namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The Veteran's medical records show that while he required insulin use, was advised to follow a proper diet, and frequently saw a diabetic doctors, his medical records do not show that his physician had placed him on any regulation of activities in order to control his diabetes. For example, in January 2008, he was noted not to have any restrictions in his ability to perform strenuous activities. In April 2008, the Veteran was afforded a VA examination. He reported that while he was instructed to follow a restricted diet, he was not advised to regulate his activities. In October 2009, the Veteran was afforded a VA examination. The VA examiner noted that there was no change in the Veteran's diabetes. In May 2010, the Veteran's diabetes was noted to improve with exercise. In June 2010, he was advised to continue to follow his diabetic diet and exercise regimen. In June 2012, December 2012, May 2013, and June 2013, he reported that he continued to exercise. In February 2014, he was advised of the importance of a proper diet and regular exercise in helping to control his diabetes. In March 2014, the Veteran was afforded a VA examination. The VA examiner indicated that the Veteran must avoid strenuous occupational and recreational activities. The examiner indicated that the Veteran visited a diabetic provider two times per month and had been hospitalized one time for ketoacidosis and one time for hypoglycemia over the past 12 months. The examiner indicated that the Veteran had progressive unintentional weight loss and loss of strength attributable to diabetes. In February 2016, the Veteran's physician Dr. J.C. reported that his diabetes was very difficult to control and his symptoms were not expected to improve. In June 2016, the Veteran was afforded a VA examination. The examiner indicated that the Veteran did not require regulation of activities for his diabetes. The examiner indicated that the Veteran had no hospitalizations in the past 12 months for ketoacidosis or hypoglycemic reactions. The examiner indicated that the Veteran did not have progressive unintentional weight loss or loss of strength attributable to diabetes. While the Veteran's medical records reflect that his diabetes required regulation of activities in October 2011, January 2012, and September 2012, he was consistently advised to exercise and in fact continued to exercise. His medical records do not reflect he was advised at any time to avoid strenuous activities as required to establish "regulation of activities" under Diagnostic Code 7913 prior to March 3, 2014. As such, a rating in excess of 20 percent is not warranted prior to March 3, 2014. After March 4, 2014, while the March 2014 examiner indicated that the Veteran had to regulate his activities, the Veteran did not have the required hospitalization frequency for a higher100 percent rating. As such, a rating in excess of 60 percent after March 4, 2014, is not warranted. Accordingly, a schedular rating in excess of 20 percent prior to March 3, 2014, and in excess of 60 percent after March 4, 2014, for diabetes is denied. CAD In December 2009, the Veteran filed his claim for service connection for CAD. In a March 2010 rating decision, he was granted service connection and assigned an initial rating of 10 percent effective October 16, 2009. He was granted a temporary 100 percent rating from December 8, 2013, through January 31, 2014, by a February 2014 rating decision. He was granted an increased rating of 30 percent rating effective March 27, 2015, and a 100 percent rating effective October 27, 2015, by a January 2016 rating decision. He was later granted a 100 percent rating effective March 4, 2014, by a May 2016 rating decision. The Veteran disagrees with the ratings assigned outside of the periods of 100 percent ratings. Specifically, he disagrees with the 10 percent rating assigned prior to December 7, 2013, and from February 1, 2014, through March 3, 2014. The Veteran's CAD is rated under Diagnostic Code 7005. A 10 percent rating is assigned for CAD resulting in workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; that requires continuous medication. A 30 percent rating is assigned for CAD resulting in workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for CAD resulting in more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating, the maximum rating allowed, is assigned for CAD resulting in chronic congestive heart failure, or; when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran's medical records show that he has consistently taking medications for his CAD. However, prior to December 7, 2013, the medical evidence does not support a 30 percent rating. For example, in June 2010, the Veteran had a METS of 10.1 and a left ventricle ejection fraction of 50 to 55 percent. From February 1, 2014, through March 3, 2014, the evidence likewise does not support a rating in excess of 10 percent. At a March 2014 VA examination, the examiner indicated that the Veteran did not have cardiac hypertrophy or cardiac dilation. The examiner indicated that a workload of greater than 1 METS but not greater than 3 METS resulted in dyspnea, fatigue, and dizziness. His ejection fraction was noted to be 60 percent. As such, a rating of 30 percent is not warranted for the period prior to December 7, 2013, or the period from February 1, 2014, through March 3, 2014, as the evidence does not show evidence of cardiac hypertrophy or cardiac dilatation or a left ventricle ejection fraction of 50 percent or less. Accordingly, a schedular rating in excess of 10 percent prior to December 7, 2013, and from February 1, 2014, through March 3, 2014, for CAD is denied. TIA In September 2009, the Veteran filed his increased rating claim for TIA, which was denied by an August 2010. The Veteran asserts he is entitled to a compensable rating. The Veteran's TIA is rated under Diagnostic Code 8046. Purely neurological disabilities, such as hemiplegia, cranial nerve paralysis, etc., due to cerebral arteriosclerosis will be rated under the Diagnostic Codes dealing with such specific disabilities, with citation of a hyphenated diagnostic code (e.g., 8046-8207). Purely subjective complaints such as headaches, dizziness, tinnitus, insomnia, and irritability, recognized as symptomatic of a properly diagnosed cerebral arteriosclerosis, will be rated 10 percent and no more under Diagnostic Code 9305. This 10 percent rating will not be combined with any other rating for a disability due to cerebral or generalized arteriosclerosis. Ratings in excess of 10 percent for cerebral arteriosclerosis under diagnostic code 9305 are not assignable in the absence of a diagnosis of multi-infarct dementia with cerebral arteriosclerosis. The ratings under Diagnostic Code 8046 apply only when the diagnosis of cerebral arteriosclerosis is substantiated by the entire clinical picture and not solely on findings of retinal arteriosclerosis. 38 C.F.R. § 4.124a, Diagnostic Code 8046. In June 2010, the Veteran was afforded a VA examination. He reported that he did not experience any weakness, urinary incontinence, fecal incontinence, or dizziness, although he reported having headaches. He reported he did not experience any overall functional impairment from his TIA. He also reported that he did not receive any treatment for his TIA. On examination, he had normal motor and sensory function of his upper and lower extremities. The examiner reported that the TIA had resolved with no residuals. The Veteran's medical records show that in February 2012, he denied having any residuals from his TIA. In November 2012, the Veteran was afforded a VA examination. He reported that his condition had worsened and he experienced dizziness and fatigue. He reported having headaches. On examination, had had no upper or lower extremity weakness. He did not have urinary incontinence or fecal incontinence. He had normal speech, normal gait, normal strength, and normal reflexes. In December 2013 and January 2014, the Veteran denied having any dizziness or weakness. The Veteran's medical records show that although he reported right-sided weakness in September 2015, he had a normal neurological examination and no weakness was noted. In addition, in July 2014, April 2015, July 2015, and October 2015, he had normal 5/5 strength with no weakness noted. As such, the Veteran's medical records show that he experienced no compensable residuals from his TIA, which is consistent with the June 2010 VA examiner's findings. Accordingly, a schedular rating in for TIA is denied. Extraschedular Considerations 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER A rating in excess of 20 percent prior to March 4, 2014, and in excess of 60 percent from March 4, 2014, for diabetes is denied. A rating in excess of 10 percent prior to December 7, 2013, and from February 1, 2014, through March 3, 2014, for CAD is denied. A compensable rating for TIA is denied. ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs