Citation Nr: 1713294	
Decision Date: 04/24/17    Archive Date: 05/04/17

DOCKET NO.  10-16 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for diabetes mellitus type II with erectile dysfunction, prior to August 9, 2010.

2.  Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction, since August 9, 2010

3.  Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus type II.

4.  Entitlement a total disability rating based on individual unemployability due to service-connected disorders.


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1966 to April 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that denied service connection for hypertension and awarded service connection for diabetes mellitus with an initial 10 percent disability rating, effective August 9, 2010.  Thereafter, a November 2012 rating decision assigned an increased, 20 percent disability rating
for the service-connected diabetes mellitus, effective on September 5, 2011.

In an August 2014 decision, the Board granted a 20 percent disability rating for the Veteran's service-connected diabetes mellitus for the entire appellate period, so from August 9, 2010, to September 4, 2011.  A disability rating in excess of 40 percent for the entire appellate period, i.e., from August 9, 2010, forward, was denied.  The Board also denied service connection for hypertension.  

In an October 2014 decision, the RO implemented the Board's award of a 20 percent rating for diabetes mellitus from August 9, 2010, to September 4, 2011.  

The Veteran appealed the Board's August 2014 decision to the United States Court of Appeals for Veterans Claims (Court).  In July 2015, the parties filed a Joint Motion for Remand.  A July 2015 Order of the Court granted the Joint Motion for Remand.  The case was remanded to the Board for action consistent with the terms of the Joint Motion.  

The Board then remanded the issues on appeal in January 2016 to ensure compliance with due process requirements and for further evidentiary development. While on remand, a September 2016 rating decision assigned an earlier effective date of August 22, 2008 for the grant of service connection of diabetes mellitus.  The RO assigned an initial 10 percent rating for diabetes mellitus from August 22, 2008, to September 9, 2010.  The date of September 9, 2010, appears to be an administrative error, as the Veteran was previously awarded a 20 percent rating for his diabetes mellitus, effective from August 9, 2010.  The Board has corrected this error, as phrased in the issue on appeal on the title page of this decision.

The issues of entitlement to service connection for hypertension and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Prior to August 9, 2010, the Veteran's diabetes was managed by diet and did not require insulin or an oral hypoglycemic agent.

2.  Since August 9, 2010, the Veteran's diabetes was not manifested by the need for insulin or regulation of activities advised or prescribed by a medical professional.


CONCLUSIONS OF LAW

1.  Prior to August 9, 2010, the criteria for a rating higher than 10 percent for diabetes have not been satisfied.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2016).

2.  Since August 9, 2010, the criteria for a rating higher than 20 percent for diabetes have not been satisfied.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied.   See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). 

Under the VCAA, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, as well as the claimant's and VA's respective responsibilities for obtaining evidence in support of the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must also make reasonable efforts to assist in obtaining evidence necessary to substantiate the claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes assisting the claimant in obtaining relevant Federal and non-Federal records, including but not limited to service treatment records (STRs) and VA treatment records, and providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  See id.; see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The Veteran has received all notice required under the VCAA, followed by adequate time to submit information and evidence before initial adjudication or readjudication of the claims.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).  With regard to the initial rating issue, because the appeal stems from a granted service connection claim, further notice under the VCAA is not warranted.  See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Concerning the duty to assist, all identified records, including service treatment records (STRs), service personnel records, VA treatment records and private treatment records have been obtained and added to the claims file, to the extent available.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  VA examinations have also been performed and the medical examination provided adequate for the Board to make a fully informed decision as to the Veteran's initial rating claim.  See 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2016); See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  There is no evidence indicating that there has been a material change in the severity of the claimant's service-connected diabetes for which a higher initial rating is sought since last examined.  See 38 C.F.R. § 3.327 (a).  Thus, further examination is not warranted.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

The Board remanded the claims in January 2016 for additional development, specifically for a more recent VA examination regarding the current severity of the Veteran's diabetes.  All of the Board's remand directives have been accomplished.  Accordingly, there has been substantial compliance with its remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D'Aries, 22 Vet. App. at 105 (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In light of the above, the Veteran has had a meaningful opportunity to participate effectively in the processing of these claims, and no prejudicial error exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).


II.  Relevant Laws and Regulations

The Veteran seeks an initial rating for his diabetes mellitus higher than 10 percent prior to August 9, 2010 and higher than 20 percent since August 9, 2010, which has been rated under 38 C.F.R. § 4.119, Diagnostic Code 7913.  

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on 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.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor.  38 C.F.R. § 4.3.

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Diabetes mellitus is rated under Diagnostic Code 7913.  38 C.F.R. § 4.119. Relevant to this appeal, the criteria for rating diabetes are "successive."  Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007).  "Successive" criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component.  Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008).  Here, the Veteran's diabetes mellitus is rated as 10 percent disabling, which requires restricted diet, prior to August 9, 2010 and as 20 percent disabling, which requires either insulin or an oral hypoglycemic agent and a restricted diet, since August 9, 2010.  The next highest evaluation, 40 percent, requires insulin, a restricted diet, and regulation of activities.  38 C.F.R. § 4.119, Diagnostic Code 7913.
 
The term "regulation of activities" is specifically defined as "avoidance of strenuous occupational and recreational activities."  Camacho, 21 Vet. App. at 363.  Medical evidence is required to support this criterion for a 40 percent rating.  Id. at 364.  In other words, a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity."  Id.  Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where the rating schedule establishes successive criteria.  

Compensable complications of diabetes mellitus are to be evaluated 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.  38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).

III.  Analysis

A.  Prior to August 9, 2010

The Veteran was afforded a VA examination in April 2009.  At that time, he denied a history of diabetes and stated that he had never been told of any diagnosis regarding glucose.  He stated that he was not diabetic and denied any treatment for diabetes.  He denied a history of episodes of hypoglycemia or ketoacidosis.  He also denied being instructed to follow a special or restricted diet or being restricted in his ability to perform strenuous activities.  The examiner diagnosed impaired fasting glucose and impaired glucose tolerance, or pre-diabetes, but concluded that the evidence did not support a diagnosis of diabetes mellitus at that time.  

An August 4, 2010 note from a private doctor shows an assessment of diabetes mellitus since May 2010.

The preponderance of the evidence weighs against the criteria for assignment of a rating higher than 10 percent for the Veteran's diabetes prior to August 9, 2010, as the Veteran was not shown to have a diagnosis of diabetes mellitus and did not require the use of insulin or an oral hypoglycemic agent.  The Veteran himself denied having been diagnosed as having diabetes mellitus and being treated for such.  He also denied being instructed to follow a special or restricted diet.  As the Veteran's pre-diabetes did not require insulin or an oral hypoglycemic agent, the criteria for a 20 percent rating were not met.  See Tatum, 23 Vet. App. At 156; Middleton, 727 F.3d at 1178; 38 C.F.R. § 4.119, Diagnostic Code 7913.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

B.  Since August 9, 2010 

An October 2010 VA examination reflects that the Veteran's history of diabetes since May 2010, noting that it had been recommended that he follow a diabetic diet only.  His current treatment was reported as diet alone.  The examiner noted that he was not restricted in his ability to perform strenuous activities.  The Veteran denied experiencing ketoacidosis, or hypoglycemic reactions.  He also denied having been hospitalized for his diabetes mellitus.

The use of medication to treat the Veteran's diabetes mellitus is first shown in his VA medical records dated September 15, 2011.

A December 2012 letter from a private doctor notes that the Veteran's diabetes mellitus required the use of daily oral medications and restricted diet.

VA treatment records dated in October 2011 and March 2014 reflect that the Veteran's diabetes mellitus was treated with pills and not insulin.  In May 2015, it noted that the Veteran was taking Glipizide tablets, 5 mg. for his diabetes mellitus.

On VA examination in July 2016, it was noted that the Veteran was taking an oral hypoglycemic agent for his diabetes mellitus and that he did not require regulation of activities as part of medical management of his diabetes mellitus.

The preponderance of the evidence weighs against the criteria for assignment of a rating higher than 20 percent for the Veteran's diabetes since August 9, 2010, as it is not manifested by the requirement of insulin and regulation of activities in terms of a medical professional advising or prescribing avoidance of strenuous occupational and recreational activities in order to manage diabetes.  See Tatum, 23 Vet. App. At 156; Middleton, 727 F.3d at 1178; 38 C.F.R. § 4.119, Diagnostic Code 7913.  The evidence specifically shows that the Veteran is taking an oral hypoglycemic agent for his diabetes mellitus and that he does not require regulation of activities as part of medical management of his diabetes mellitus.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App.at 54 (1990).

C.  Extraschedular Rating 

The evaluation of the Veteran's diabetes does not warrant referral for extraschedular consideration.  See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008); aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  In this regard, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  These criteria have been broken up into a three-step inquiry: (1) The schedular criteria must be inadequate to describe the claimant's disability level and symptomatology; (2) There must be related factors such marked interference with employment or frequent periods of hospitalization; (3) If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 114.

Here, a comparison of the Veteran's diabetes with the schedular criteria shows that the rating criteria are adequate to describe the disability level and symptomatology.  Therefore the first step of the inquiry is not satisfied.  See Thun, 22 Vet. App. at 114.  Specifically, his diabetes requires an oral hypoglycemic agent and restricted diet, both of which are contemplated by the rating criteria.  It is not manifested by any symptoms or functional impairment not contemplated by the rating criteria.  Moreover, and in the alternative, related factors including frequent periods of hospitalization or marked interference with employment are not shown.  On VA examinations in October 2010 and July 2016, the Veteran denied any hospitalizations for his diabetes mellitus and the examiner noted that his diabetes did not impact his ability to work.  Further, the Veteran is already separately rated for his complications of diabetes mellitus, including peripheral neuropathy of his upper and lower extremities, and he is in receipt of special monthly compensation under 38 U.S.C. 1114, subsection (k) and 38 CFR 3.350(a) on account of loss of use of a creative organ, due to his erectile dysfunction.

When argued by the claimant or reasonably raised by the record, the combined effects of a veteran's service-connected disabilities must also be considered in determining whether extraschedular referral is warranted under § 3.321(b)(1). Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014); Yancy v. McDonald, 27 Vet. App. 484, 495 (2016).  The Veteran has not stated, and the record does not otherwise indicate, that his other service-connected disabilities have affected his diabetes such that application of the schedular criteria is impractical.  All disabling manifestations have been evaluated under the rating criteria, as discussed above, and the evidence does not show that the combined impact is more severe than the ratings assigned, including the combined evaluations under 38 C.F.R. § 4.25 (2016) during the pendency of this claim.  See Johnson, 762 F.3d at 1365 (observing that '§ 3.321(b)(1) performs a gap-filling function [that] accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented').  To the extent the Veteran's diabetes is manifested by other complications such as peripheral neuropathy of the upper and lower extremities, those are rated separately under the appropriate diagnostic codes, as directed by the rating criteria, and the Veteran is in receipt of special monthly compensation as a result of his erectile dysfunction.  Accordingly, this issue has not been reasonably raised.


ORDER

Entitlement to an initial rating in excess of 10 percent for diabetes mellitus type II with erectile dysfunction prior to August 9, 2010 is denied.

Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II with erectile dysfunction since August 9, 2010 is denied.


REMAND

While the Board sincerely regrets the delay, the service connection claim for hypertension must be remanded again for further development, as discussed below.  Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration.

A VA opinion is required as to the likelihood that the Veteran's hypertension is related to exposure to an herbicide agent such as that used in Agent Orange while serving in Vietnam.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  The Veteran served in Vietnam during the Vietnam Era and thus is presumed to have been exposed to an herbicide agent.  See 38 C.F.R. § 3.307(a) (2016).  Moreover, there is at least an indication that his currently diagnosed hypertension may be related to such exposure.  Specifically, the National Academy of Sciences (NAS) has found "limited or suggestive evidence of an association between" hypertension and Agent Orange exposure based on a recent statistical study.  See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012); Notice on Health Outcomes Not Associated With Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,542 (June 8, 2010); see also 38 U.S.C.A. § 1116(b) (West 2014).  

The category "limited or suggestive evidence of an association" means that the "[e]vidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence." 77 Fed. Reg. at 47,928; 75 Fed. Reg. at 32,542.  The Secretary of VA concluded that the studies cited to by NAS were not sufficient to establish a "positive association" between hypertension and Agent Orange exposure to warrant a new presumption of service connection for hypertension on this basis.  See id.

Nevertheless, NAS's finding of "limited or suggestive evidence of an association" between Agent Orange exposure and hypertension is at least sufficient to satisfy the "low threshold" of whether the Veteran's hypertension may be related to service to warrant an opinion.  See McLendon , 20 Vet. App. at 83 (holding, in pertinent part, that an examination or opinion is warranted when there is an indication that a current disability may be related to an in-service event).  In this regard, although presumptive service connection for hypertension is not available based on herbicide exposure, the claim may still be established with proof of direct causation.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the "availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange").

The record raises the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.  Significantly, however, the RO has not yet adjudicated this issue.  Hence, the Board may not adjudicate this issue in the first instance without potential prejudice to the Veteran's claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider the potential for prejudice).  

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain the Veteran's updated VA treatment records.

2.  Provide the Veteran with VCAA notice which informs him of the evidence necessary to establish entitlement to a total disability rating based on individual unemployability due to service-connected disorders.   He should also be provided a VA Form 21-894, Application for Increased Compensation based on Unemployability.  

3.  Thereafter, obtain a VA medical opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's hypertension is related to exposure to an herbicide agent such as that used in Agent Orange.  

The claims file must be made available to the examiner for review.  The examiner must provide specific reasons in support of the conclusion reached.

4.  Schedule the Veteran for an appropriate VA examination to evaluate the issue of entitlement to a TDIU.  All indicated tests and studies are to be performed, and a comprehensive social, educational and occupational history obtained.  In conjunction with the examination, the claims folder must be made available to and reviewed by the examiner.

Following evaluation of the Veteran, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (i.e., diabetes mellitus with erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities).

All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report.

5.  Finally, after completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative, if any, an appropriate SSOC and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs