Citation Nr: 1718372 Decision Date: 05/25/17 Archive Date: 06/05/17 DOCKET NO. 12-27 048 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy and amputation of the second toe of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1968. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2010 rating decision in which the RO denied the Veteran's claim for a rating in excess of 20 percent for diabetes mellitus. The Veteran filed a notice of disagreement (NOD) in April 2011. In August 2012, the RO issued a statement of the case (SOC), and, in September 2012, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals). In September 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2015, the Board remanded the claim via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. In July 2015, after further action, the RO issued a supplemental SOC (SSOC) continuing to deny the claim. The Board notes that additional evidence-specifically, the report of a VA eye examination-was added to the record after the issuance of the July 2015 SSOC. However, as this evidence is not pertinent to the claim on appeal, a remand of the this matter to the RO for consideration of the evidence, and issuance of an SSOC reflecting such consideration, is not required. See 38 C.F.R. § 20.1304(c) (2016). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veteran Benefits Management System (VBMS) and Virtual VA claims processing systems. Of note, the Virtual VA file contains the September 2013 Board hearing transcript; the remaining documents in Virtual VA are either duplicative of the documents in the Veteran's VBMS file or irrelevant to the issue currently on appeal. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Since June 2009 (one year prior to the date of filing of a claim for increased rating), the Veteran's diabetes mellitus has been managed with oral hypoglycemic agent(s) and at least one insulin injection per day with no episodes of hypoglycemia or ketoacidosis requiring hospitalization, no required restriction of strenuous activities, and visits to a diabetic care provider less than monthly; associated complications provide no basis for any higher or additional rating. 3. The applicable schedular criteria are adequate to rate the Veteran's diabetes mellitus at all pertinent points, and no claim of unemployability due to the disability has been raised. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). After a complete or substantially complete application for benefits is received, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Pelegrini v. Principi, 18 Vet. App. 112 (2004) and Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, with respect to claims for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). VCAA compliant notice must be provided to a claimant before an unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a June 2010 pre-rating letter, the AOJ provided notice to the Veteran explaining what information and evidence was needed to substantiate his claims for increased rating, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The letter further provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Also, the SOC set forth the criteria for higher ratings for scars (the timing and form of which suffices, in part, for Dingess/Hartman). The record also reflects that, consistent with applicable duty-to-assist provisions, VA has made reasonable efforts to develop the claim herein decided, to include obtaining or assisting in obtaining all relevant records and other evidence pertinent to this matter. Pertinent medical evidence associated with the claims file consists of VA treatment records, private treatment records, and March 2010, August 2010, May 2012, and June 2015 VA examination reports and opinions. Also of record and considered in connection with this claim is the transcript of the Veteran's Board hearing, along with various written statements by the Veteran and his representative, on his behalf. The Board finds that no further AOJ action on the claim, prior to appellate consideration, is required. As noted, the Veteran had an opportunity to orally advance his contentions during a Board hearing. During the September 2013 Board hearing, the undersigned identified the claim on appeal as that herein decided. Information was elicited regarding the nature of the disability, current severity, and treatment. During the hearing, the Veteran also testified that his other disabilities associated with his diabetes had worsened. Although the undersigned did not explicitly suggest the submission of any specific additional evidence, on these facts, such omission was harmless. The hearing discussion did not reveal any specific, existing evidence that had been overlooked with regard to the instant claim. Thus, the hearing was legally sufficient. See 38 C.F.R. § 3.103(c)(2) (2016); Bryant v. Shinseki, 23 Vet. App. 488 (2010). As indicated above, in January 2015, the Board remanded the claim on appeal for additional development, and the record reflects compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that substantial, rather than strict, compliance is sufficient). The Board instructed the AOJ to obtain outstanding VA medical records from the Cleveland VA Medical Center (VAMC) send the Veteran a letter requesting sufficient information to obtain any additional evidence and to schedule the Veteran for a new VA examination to assess the severity of his diabetes mellitus, type II. The AOJ obtained Cleveland VAMC records in June and July 2015, sent the Veteran a letter in March 2015, and scheduled the Veteran for a new VA examination in June 2015. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. As such, the Veteran is no prejudiced by the Board proceeding to a decision on the claim for which an appeal has been perfected, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for increased rating for an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore being undertaken with the possibility that staged rating of the disability under consideration may be warranted. Diabetes mellitus warrants a 20 percent rating if management of the disease requires insulin and restricted diet, or oral hypoglycemic agents and restricted diet. A 40 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately rated. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Compensable complications are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). "Regulation of activities" has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,443 (May 7, 1996) (defining "regulation of activities," as used by VA in 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). At the outset, the Board notes that the Veteran filed his claim in June 2010. As such, the Board will take into consideration evidence up to one year prior to the date the Veteran filed his claim for increase, specifically June 2009. 38 C.F.R. 3.400(o). A March 2010 VA examination report reflects a diagnosis of diabetes treated with a low carbohydrate diet and insulin twice a day, but no restriction on calories or oral medications. The Veteran did not experience hypoglycemic reactions or ketoacidosis that required hospitalization. The Veteran maintained his weight and did not have any written restriction with activities by a physician on account of diabetes. An August 2010 VA examination report documents that the Veteran denied any current symptoms from his diabetes. He stated that he was never hospitalized for hypoglycemia and had never had an episode of ketoacidosis. The examiner noted that his weight had remained stable within the same 10-pound range over the last year, and that he had not had sugar fluctuation that interfered with daily activity. He also noted that there were no restrictions in activities due to diabetes. A May 2012 VA examination report indicates that the Veteran was prescribed oral hypoglycemic agent(s) and insulin injections more than once a day. The examiner noted that there were no restrictions in activities as part of medical management of diabetes, that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month, that there was no hospitalization due to ketoacidosis or hypoglycemia, and that there was no progressive unintentional weight loss or progressive loss of strength. He also noted that the Veteran had complications of diabetes, specifically diabetic peripheral neuropathy and diabetic retinopathy. He opined that the diabetes did not impact the Veteran's ability to work. During his September 2013 Board hearing, the Veteran testified that he was on Glipizide and injected 45 units of insulin twice per day to control his diabetes. He also testified that he restricted his diet and restricted his activities by limiting his walking to about 75 to 100 yards and he did not "cut the grass or do anything around the house." He further testified that his symptoms associated with his diabetes, to include his retinopathy, had gotten worse since his last VA examination in May 2012. A June 2015 VA examination report reflects that the Veteran was prescribed oral hypoglycemic agent(s) and insulin injections more than once a day. The examiner noted that there were no restrictions in activities as part of medical management of diabetes, that the Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than twice a month, that there was no hospitalization due to ketoacidosis or hypoglycemia, and that there was no progressive unintentional weight loss or progressive loss of strength. She also noted that the Veteran had complications of diabetes, specifically diabetic peripheral neuropathy, diabetic retinopathy, and erectile dysfunction. The examiner opined that the Veteran did not require regulation of activities. She acknowledged the Veteran's statements that he was unable to ambulate distances and had to stop and rest, but concluded that this was due to fatigue/deconditioning and not diabetes. She noted that the Veteran's physical examination revealed bilateral lower extremity strength of 5/5, and that the Veteran ambulated to the examination room without difficulty, albeit with an antalgic gait due to a "surgical type" boot on his right foot. The examiner specifically noted that the Veteran did not report an inability to perform physical activities due to low or high blood sugars, but rather because of fatigue. She noted that the Veteran had other co-morbid conditions that were likely responsible for his reported fatigue, to include service-connected ischemic heart disease with ejection fraction of 40 to 45 percent, arthritis, history of anemia, and history of chronic kidney disease. She noted that the physical examination and the evidence of record did not reflect any hypo or hyperglycemia requiring medical intervention, and that there was no evidence that Veteran was a "brittle" diabetic. She also noted that since June 2009, the Veteran had had his left foot second toe amputated in February 2010 as result of an infection, which was most likely due to complications (i.e. non-healing diabetic ulcer attributable to his diabetes). Nevertheless, she concluded that, in comparison to his last examination in May 2012, it appeared that the Veteran's diabetes had improved slightly since his HgBA1c fell from 9.0 in February 2010 to 7.6 in April 2015. Considering the pertinent evidence in light of the applicable criteria, the Board finds that a rating in excess of 20 percent for diabetes mellitus is not warranted at any time since June 2009, one year prior to the date the Veteran filed his claim for increased rating. Specifically, while the evidence shows the Veteran takes oral hypoglycemic agents and insulin injections, the evidence does not reflect any medical directive to restrict activities at any point pertinent to the current claim on appeal. The Board acknowledges the Veteran's testimony and statements that he self-imposed a reduction of activity and exercise, but there is no clinical evidence that this was directed by his physician as part of a required method of treatment. Moreover, the June 2015 VA examiner explained that the Veteran's difficulty completing activities was due to fatigue/deconditioning, and not diabetes. Specifically, she opined that the Veteran had several co-morbid conditions that were likely responsible for his reported fatigue, to include service-connected ischemic heart disease with ejection fraction of 40 to 45 percent, arthritis, history of anemia, and history of chronic kidney disease. In addition, she also noted that, based on the Veteran's HgBA1c results, it appeared that his diabetes had improved since his last VA examination. As the competent, probative evidence indicates that the Veteran has not been required to regulate his activities for rating purposes, the Board finds that the criteria no higher rating-in particular, the next higher, 40 percent rating-for diabetes mellitus, under Diagnostic Code 7913, are not met. There also is no evidence of any episodes of hypoglycemia or ketoacidosis requiring hospitalization which is another requirement for an even higher rating under that diagnostic code. In accordance with Note (1), the Board has also considered the complications of the Veteran's diabetes mellitus, but finds that none provides a basis for any higher or additional rating. From November 18, 2001, to May 22, 2012, service connection was in effect for diabetes mellitus with peripheral neuropathy of the upper right and left extremities, diabetic retinopathy, and amputation of the second toe of the left foot. As of May 22, 2012, the RO granted a separate rating for his peripheral neuropathy of the right and left upper extremities, but continued the 20 percent rating for diabetes mellitus with diabetic retinopathy and amputation of the second toe of the left foot. Notably, the associated retinopathy and amputation of the second toe of the left foot-neither is which is shown to warrant a compensable rating-are considered part of the diabetic process, and provide no basis for any higher or additional rating. The Board further notes that separate ratings assigned for associated peripheral neuropathy of the upper and lower extremities, coronary artery disease and erectile dysfunction are not currently at issue, and the record does not document that the Veteran has any complications of diabetes mellitus other than those for which disability ratings have already been assigned. In evaluating the claim for increased rating for the Veteran's service-connected diabetes mellitus, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Clearly, the Board has considered the Veteran's statements in reaching the above determinations. Generally, however, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). In this regard, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher ratings for diabetes mellitus. The above determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this claim has the Veteran's diabetes mellitus been shown to present so exceptional or so unusual a picture as to render the applicable criteria inadequate, and to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the AOJ or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, the Board finds that the applicable schedular criteria are adequate to rate the Veteran's diabetes mellitus at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate diabetes mellitus. Furthermore, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. Here, however, the Veteran has not asserted, and the evidence of record does not suggest, that this appeal involves any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extra-schedular 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"). As such, further discussion of the holding in Johnson is unnecessary. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, referral of the claim for extra-schedular consideration is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that if a claimant or the record reasonably raises the question of whether the claimant is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total disability rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, however, there is no evidence or argument that the Veteran's service-connected diabetes mellitus, has actually or effectively rendered him unable to obtain or retain substantially gainful employment. Under these circumstances, the Board finds that a TDIU due to this disability has not been raised in conjunction with the claim rating, and need not be addressed herein. For all the foregoing reasons, the Board finds that, there is no basis for staged rating of the Veteran's diabetes mellitus, pursuant to Hart, and that the claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating for the diabetes mellitus at any point pertinent to this appeal. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy and amputation of the second toe of the left foot is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs