Citation Nr: 1710698 Decision Date: 04/05/17 Archive Date: 04/19/17 DOCKET NO. 11-23 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Jadhav, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1969, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the entitlement to a rating in excess of 20 percent for diabetes mellitus type II. FINDING OF FACT The Veteran's service-connected diabetes mellitus type II requires a restricted diet, daily insulin and oral medication without regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA's duty to notify was satisfied through letter dated in June 2009, which fully addressed all notice elements. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes obtaining relevant records in the custody of a Federal department or agency under 38 C.F.R. § 3.159 (c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159 (c)(1). VA will also provide a medical examination if such examination is determined to be necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4). Service treatment records are associated with claims file. All relevant post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be acquired prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in connection with his claims on appeal. These examinations are adequate for the purposes of the matters adjudicated herein, as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2 (2016). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2016). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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., assignment of different rating for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran's diabetes mellitus has been assigned a 20 percent rating under Diagnostic Code 7913. The Board will use this diagnostic code to evaluate his service-connected diabetes. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). Under the rating criteria, diabetes mellitus that requires 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 evaluated is evaluated as 100 percent disabling. 38 C.F.R. § 4.119, Diagnostic Code 7913. Diabetes mellitus 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 is evaluated as 60 percent disabling. Id. Diabetes mellitus that requires insulin, restricted diet, and regulation of activities is evaluated as 40 percent disabling. Id. When insulin and a restricted diet are required, or an oral hypoglycemic agent and a restricted diet, a 20 percent evaluation is merited. Id. The adjudicator is to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. Id. at Note (1). The term "regulation of activities" contained in Diagnostic Code 7913 means that a claimant must have a medical need to avoid strenuous occupational or recreational activities and thus medical evidence of limitation of activities is required. See Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) ("The Court holds that medical evidence is required to support this criterion of a 40% disability rating - regulation of activities."). Factual Background The Veteran's diabetes mellitus claim has been assigned a 20 percent disability rating. The Veteran asserts that a higher rating is warranted because he uses insulin, has restricted exercise, and a low calorie diet. See July 2011 VA Form 9; VA 21-4138 Statement In Support of Claim, p.1, received 07/14/2015. In July 2010, the Veteran was provided a routine checkup, where the Veteran was counseled on the importance of regular exercise, to include being instructed to try to exercise at least 30 minutes 3 times per week as well as control of blood pressure and diet. See Medical Treatment Record-Government Facility, p.1, 4, received 09/03/2010. It was also noted that although the Veteran complained about poor symptom management of his erectile dysfunction with medication, he was provided with a vacuum pump. Id. at 4. The Veteran was afforded a VA examination in June 2009 and it was noted that that the Veteran's diabetes mellitus had an onset date of September or October 2004 and was initially diagnosed by the Veteran's primary care physician after evaluation of polydipsia and polyuria. See VA Examination, p.1, received 06/25/2009. The Veteran denied that his activities were restricted to prevent hypoglycemia. In this regard, it was noted that the Veteran walked 1 mile 1 time per week and climbed 14 stairs. His diet was restricted to avoid sweets, and he was on oral medication and received insulin. Id. at p.2. Similarly, the Veteran the medical history section of the report also noted no restriction in ability to perform strenuous activities and that he was on a restricted or special diet. Although the Veteran complained of symptoms of blurry vision, diabetic retinopathy was not the cause. There was no diagnosis of kidney disease, neurologic disease, amputation or peripheral edema. The Veteran also underwent an examination by Dr. JJ who found that theVeteran's diabetes mellitus type II is at least as likely as not related to erectile dysfunction, hypertension, and renal disease, however he also determined that theVeteran's diabetes mellitus type II is managed by restricted diet and prescribed oral hypoglycemic agents. Also, at that time, it was noted that the Veteran did not require regulation of activities. See Disability Benefits Questionnaire (DBQ) Veteran Provided, p.1, received 04/24/2015. The Veteran also had multiple VA examinations in 2015. The report of the May 2015 examination states that in 2009, the Veteran required insulin once daily and needed 3 oral hypoglycemic agents as the diabetes was impliedly severe. However the same examination noted that the Veteran's hypertension was stable in 2015 and he did not have neuropathy. See C&P Exam, p.3, received 05/21/2015. Also in May 2015, Dr. D.C. completed a DBQ on Nephrology and found that the Veteran has not been diagnosed with or currently had a kidney condition. See C&P Exam, p.2, received 05/21/2015. In December 2015, the Veteran underwent another examination where it was noted that the Veteran was prescribed oral hypoglycemic agents, and required insulin shots once a day; however, he did not require regulation of activities as part of diabetes mellitus management. See C&P Exam, p. 1, received 12/30/2015. This DBQ also noted that the Veteran did not frequently have episodes of ketoacidosis or hypoglycemia requiring hospitalization or visits to a healthcare provider. Id. Additionally, although Dr. S.G opined that the Veteran has diabetic neuropathy caused by the diabetes mellitus type II, the examiner also found that the diabetic neuropathy and renal dysfunction are not at least as likely as not due to diabetes mellitus. Id. at 2. Additionally, the two additional reports dated on December 30, 2015 for a medical opinion and for the kidney condition. The reports indicate that the Veteran's erectile dysfunction was aggravated by his service-connected diabetes mellitus type II. See C&P Exam, p.2, received 12/30/2015. In respect to the kidney condition disability benefit questionnaire, the examiner found that although the Veteran had been diagnosed with a kidney condition in 2015, he was not being treated for the diagnosed condition in spite of having proteinuria. See C&P Exam, p.4, received 12/30/2015. Analysis After a review of the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for any portion of the rating period on appeal. In this regard, the record demonstrates that the Veteran's diabetes mellitus requires daily insulin, oral medication (hypoglycemic agent(s)), and a restricted diet. Despite the Veteran's assertions that his activities have been restricted, the Board notes that the competent medical evidence demonstrates that there are no recent restrictions of activities as a result of diabetes mellitus type II. Notably, none of the competent medical providers determined that the Veteran's activities were restricted due to diabetes mellitus type II. Further, the VA treatment records reveal that the Veteran was counseled on the importance of diet and regular exercise and not directed to restrict or regulate his activity. See Medical Treatment Record Government Facility, p.4, received 09/03/2010. The Board also considered the Veteran's complaint of blurry vision in March 2009 and the note of high blood pressure in July 2009, however because the VA examiner noted that diabetic retinopathy was not the cause of the blurry vision, the Board finds that this complication is not attributed to diabetes mellitus. See VA Examination, p.2, received 06/25/2009. The Board notes that a February 2016 rating decision found that the Veteran's nephropathy is part of his service-connected diabetes. However, the rating decision stated that the symptoms would be rated as non-compensable (0 percent) if evaluated by themselves. In this regard, the Board notes that the Veteran's nephropathy, is not symptomatic; therefore, he has no corresponding functional impairment. See C&P Exam, p.1,4, received 12/30/2015. As such, the nephropathy was included as part of the service-connected diabetes per Note (1) to DC 7913 and a separate rating is not warranted at this time. The Board has also considered some of the Veteran's other claimed health issues as complications of diabetes in determining whether a higher or separate disability rating is warranted. While an examiner found that the Veteran's erectile dysfunction is as least as likely as not related to diabetes mellitus type II, the Board notes that the record reflects that the Veteran is already separately service-connected for his erectile dysfunction (albeit at a noncompensable evaluation) associated with his diabetes with diabetic nephropathy. The medical and lay evidence of record do not reflect signs or symptoms, such as deformity, that would warranted a compensable rating under DC 7522. Therefore, the Board finds that based on the medical evidence as provided, a rating higher than 20 percent for diabetes mellitus type II is not warranted. 38 C.F.R. § 4.119, Code 7913. Therefore, the benefit of the doubt rule does not apply, and the claim for an increased evaluation for the Veteran's diabetes mellitus is denied. 38 U.S.C.A. § 5107(b). Extraschedular Consideration The Board has also considered whether this case should be referred to the Director of VA's Compensation Services for evaluation of entitlement to extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). Such a referral requires a finding that the evidence demonstrates an exceptional disability picture and that the available schedular rating for a service-connected disability is inadequate. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, therefore, referral is unnecessary. Rather, the manifestations of the Veteran's diabetes mellitus are fully considered by the rating criteria. This includes the diagnosis of diabetic nephropathy, with no related functional impairment that results from the Veteran's diabetes mellitus disability. The rating criteria also capture the Veteran's restricted diet and requirement to take insulin. Thus, referral for consideration of an extra-schedular disability rating is not necessary at this time. There is no combined effect, which is exceptional and not captured by the schedular evaluations. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In Yancy v. McDonald, 27 Vet. App. 484, 495 (2016), the Court held that the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. The Board finds that these considerations have not been raised. Accordingly, referral for consideration of a combined extra-schedular rating is not necessary. ORDER Entitlement to a rating in excess of 20 percent for diabetes mellitus type II is denied. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs