Citation Nr: 1715643 Decision Date: 05/10/17 Archive Date: 05/22/17 DOCKET NO. 13-16 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1966 to September 1969 including service in the Republic of Vietnam and from June 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2014, the RO granted service connection for right and left lower extremity diabetic neuropathy and assigned ratings of 10 percent each, effective August 12, 2013. The assigned ratings and effective date are not on appeal. The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDING OF FACT The Veteran's service-connected diabetes is manifested by not more than the required use of oral hypoglycemic agents and a restricted diet; evidence does not demonstrate that he requires insulin or was prescribed a regulation of activities. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for service-connected diabetes are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.21, 4.119, Diagnostic Code (DC) 7913 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for diabetes mellitus. 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). No additional discussion of the duty to notify is therefore required. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. In this case, VA obtained the Veteran's service treatment records (STRs), private medical records, and post-service VA treatment records. The Veteran was also afforded a VA examination as to diabetes mellitus in May 2011 and for neurologic complications of diabetes in October 2013. As these examinations were based on a review of the Veteran's symptoms and complaints and discuss his disabilities in relation to the pertinent rating criteria, they are adequate for adjudication purposes. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and a sufficient basis upon which to reach a decision on the Veteran's claim for an increased rating for diabetes mellitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran did not identify any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection has been established for diabetes mellitus. The RO evaluated the Veteran's disability as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is for application when diabetes mellitus 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 evaluation 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 3 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 (2016). Pursuant to Diagnostic Code 7913, Note (1)-pertaining to diabetes mellitus-complications are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately. In this case, the Veteran's lower extremity neurological complications have been evaluated separately and therefore are not for consideration in the evaluation of his diabetes mellitus. 38 C.F.R. § 4.14. The report of a May 2011 VA examination reflects that treatment for the Veteran's diabetes mellitus consisted of oral medications and a restricted diet. The Veteran stated that he was not prescribed insulin. The Veteran reportedly did not experience any functional impact from the condition and exercised. Following examination, the examiner opined that the Veteran's diabetes mellitus did not have any effect on his daily activities. The Veteran's February 2012 Notice of Disagreement states that his diabetes mellitus has remained stable because he exercises, eats right, and takes his prescribed medication. He goes on to say that he is entitled to a higher disability rating because of the restrictions placed on his diet because he is concerned that this condition will worsen with age. With the exception of the lower extremity neuropathy, the Veteran has not reported nor does the record show changes to the treatment regimen or symptomatology to suggest that his diabetes mellitus has worsened since his May 2011 VA examination. In August 2012, VA clinicians advised the Veteran to exercise. In June 2014, a VA primary care clinician noted that blood test results for diabetes were below the treatment goal and under control with oral medication and restricted diet but without regulation of activities. In an October 2012 statement, the Veteran reported that he was told that he had constipation that might be caused by diabetes. However, he had undergone a colonoscopy in September 2012 that found no colon abnormalities. The attending physician noted that the constipation was likely a function of age and prescribed a laxative medication. Therefore, the weight of competent evidence is that constipation is not a complication of diabetes in this Veteran's case. Here, throughout the rating period, the evidence supports a finding that the Veteran's diabetes mellitus requires oral medications and a restricted diet; and is against a finding that the Veteran's diabetes mellitus requires regulation of activities. Under these circumstances, the evidence is against awarding an evaluation in excess of 20 percent. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased evaluation in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs