Citation Nr: 1757748	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO.  13-19 670	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1. For the period since March 9, 2017, entitlement to a schedular evaluation greater than 40 percent for diabetes mellitus type 2.

2. Entitlement to an extraschedular evaluation for diabetes mellitus type 2. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant, his spouse, and his son-in-law




ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to April 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

In June 2014, a Central Office hearing was held before the undersigned. 

In May 2015, the Board denied entitlement to a schedular rating in excess of 20 percent for diabetes mellitus. The Veteran did not appeal this decision and it is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). The Board also referred several issues and remanded the issue of entitlement to an extraschedular evaluation for diabetes mellitus. 

In March 2017, VA adjudicated the issues referred by the Board. Specifically, the rating for the Veteran's posttraumatic stress disorder with unspecified depressive disorder was increased to 70 percent disabling effective July 11, 2013; entitlement to service connection for peripheral neuropathy of the upper and lower extremities was denied; and a prior denial of entitlement to service connection for diabetic retinopathy was confirmed and continued. To date, the Veteran has not appealed this decision and those issues are not for appellate consideration. 

In June 2017, VA increased the rating for diabetes mellitus type 2 to 40 percent from March 9, 2017. As this was accomplished during the appeal period and included in the June 2017 supplemental statement of the case, the Board will consider the issue of entitlement to a schedular rating greater than 40 percent since March 9, 2017. 

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 


FINDINGS OF FACT

1. For the period since March 9, 2017, the Veteran's diabetes mellitus type 2 has not been manifested by 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. 

2. The Veteran's posttraumatic stress disorder and diabetes mellitus type 2 alone, to include their combined effects, do not result in an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards.


CONCLUSIONS OF LAW

1. For the period since March 9, 2017, the criteria for a rating greater than 40 percent for diabetes mellitus type 2 are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017).

2. The criteria for an extraschedular evaluation for diabetes mellitus type 2, to include the combined effects of diabetes and PTSD, are not met at any time during the appeal period. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b)(1) (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).

A 20 percent rating is assigned for diabetes mellitus when it requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. 38 C.F.R. § 4.119, Diagnostic Code 7913. A 40 percent rating is assigned for diabetes mellitus when it requires insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is assigned 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. Id. "Regulation of activities" is defined in the criteria for a 100 percent rating as "avoidance of strenuous occupational and recreational activities". Id.

The rating criteria for diabetes are conjunctive, thereby requiring that all criteria be met. Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013).

On VA examination in October 2012, the Veteran reported treatment for his diabetes including insulin and Metformin. The examiner stated that he did not require regulation of activities as part of the medical management for his diabetes. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times a month and he had not been hospitalized in the prior 12 months for any episodes of ketoacidosis or hypoglycemia. The examiner indicated that the Veteran did not have diabetic peripheral neuropathy, diabetic nephropathy, diabetic retinopathy or other complications of diabetes. The examiner opined that diabetes did not impact his ability to work. The examiner further remarked that the Veteran's diabetes was well-controlled without complications. The complaints of radiculopathy/neuropathy were established following spinal surgery. 

In a December 2012 statement, the Veteran's spouse said that with the appellant's blood sugar dropping to the 20's, he refused to stay by himself.  She stated that the claimant's posttraumatic stress disorder  only made things worse. 

In a July 2013 statement, the Veteran reported he was taking 30 units of insulin per day, plus 2000 milligrams of Metformin. The claimant stated that he was on a very restricted diet and this had caused their grocery bill to increase. He reported weekly phone visits with the VA clinic and that he had two to four hypoglycemic reaction episodes per week. He has not gone to the hospital and his daughter, who is a nurse, helps him with his symptoms. 

At the June 2014 hearing, the Veteran testified that while he experienced hypoglycemic reactions he had not been hospitalized. His doctor had not prescribed any regulations of activities and wanted him to be as active as he can. He reported being seen at the VA clinic about every three months. He also reported that he gets very nervous when he is by himself. 

The Veteran most recently underwent a VA diabetes examination on March 9, 2017. Treatment for diabetes included a restricted diet, oral hypoglycemic agents, and insulin. The examiner stated that regulation of activities was required. Specifically, that the Veteran stayed close to the house and if his glucose dropped he became totally exhausted and could not do anything. The appellant denied going to the hospital for these episodes but rather regulated the episodes himself with a snack. Similar episodes reportedly occurred approximately once a month. He visited his diabetic care provider for episodes of ketoacidosis or hypoglycemia less than twice a month. He denied having any episodes requiring hospitalization over the past 12 months. He did not have any recognized complications of diabetes. The examiner opined that the Veteran's diabetes impacted his ability to work as the claimant was a sheet metal worker and could not work long hours due to decreased stamina. He also became dizzy and started sweating when his glucose was low. All of this would interfere with the efficiency of work and his safety. The examiner further remarked that the Veteran did not have nephropathy or retinopathy and that in the absence of both of these, any neuropathy he has is not due to diabetes. 

VA records show continued treatment, to include medication management and increased insulin, for diabetes. These records also document complaints of hypoglycemia and he was educated on the importance of carbohydrates and instructed to eat a snack between meals to prevent this.

In both February and April 2017, the RO submitted a request for extraschedular consideration to the Director, Compensation Service. In June 2017, the Director completed an administrative review and did not concur with the RO's recommendation to grant an increase on an extraschedular basis. The following discussion was provided:

The Veteran claims that additional symptoms of regulation of activities and increased nervousness warrant an increase in his diabetes mellitus type II on an extra-schedular basis. However, no evidence of frequent periods of hospitalization is of record and several exams show the contrary. [A] PTSD exam dated June 15, 2011 shows that the Veteran has been service-connected for a mental disorder and the symptoms include panic attacks and frequent anxiety. A diabetes exam dated October 8, 2012, also shows that the examiner stated no need for regulation of activities. Therefore, the medical evidence of record is consistent with the criteria set forth in the regular rating schedule and do not meet the requirements for a higher evaluation on an extra-schedular basis from January 3, 2012. 

It [was not] until March 9, 2017, that another diabetes exam was performed and the examiner stated that the Veteran require[d] a need for regulation of activities to manage his diabetes mellitus. Therefore, consideration to increase any of this service-connected condition from January 3, 2012, on an extra-schedular basis (3.321(b)(1)) is denied. However, there is sufficient evidence to grant a higher 40% evaluation on a schedular basis, due to regulation of activities, from March 9, 2017, the date the exam shows entitlement arose. 

(Emphasis in the original.)

	Schedular rating

As discussed, in May 2015, the Board denied entitlement to a schedular rating greater than 20 percent and that decision is final. Thus, any discussion of entitlement to a higher schedular rating is limited to a rating greater than 40 percent for the period beginning March 9, 2017. 

On review, the criteria for a 60 percent rating are not met or more nearly approximated. That is, while the Veteran reports frequent hypoglycemic reactions, he is apparently able to manage them himself and they do not require one or two hospitalizations per year or twice a month visits to his diabetic care provider. Additionally, evidence of record does not establish any complications of diabetes. In making this determination, the Board acknowledges the Veteran's complaints of neuropathy, but the evidence shows that this is not related to his diabetes, but rather, to residuals of nonservice-connected spinal surgery. The Veteran's unsupported lay assertions in this regard are not considered as probative as the medical evidence of record. 

	Extraschedular rating

The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1).

The United States Court of Appeals for Veterans Claims (Court) has set out three elements, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board is precluded from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. As noted, in June 2017, the Director, Compensation Service, determined that an extraschedular evaluation was not warranted. Thus, the Board must now consider entitlement to a higher rating on an extraschedular basis. Kuppamala v. McDonald, 27 Vet. App. 447 (2015).

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the United States Court of Appeals for the Federal Circuit held that "[t]he plain language of 38 C.F.R. § 3.321(b)(1) provides for referral of extra-schedular consideration based on the collective impact of multiple disabilities."

The Veteran essentially argues that the combined effect of his diabetes and posttraumatic stress disorder supports an extraschedular rating. Specifically, that his blood sugar frequently drops and he cannot stay by himself, all of which is exacerbated by his posttraumatic stress disorder. At the outset, the Board observes that the reported symptoms are largely contemplated by the applicable rating criteria. See 38 C.F.R. § 4.119, Diagnostic Code 7913 and 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). The Board previously remanded the issue for the RO to determine whether referral for extraschedular consideration was warranted. Given that the RO referred the issue and an administrative decision was rendered, the Board will conduct a de novo review of the decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015).

Assuming, without conceding, that the rating criteria are not adequate, the Board will proceed to the next consideration. On review, the Board finds no indicia of an exceptional or unusual disability picture even when considering the combined effect of diabetes and posttraumatic stress disorder. The Veteran is not frequently hospitalized for either disorder. Regarding employment, the overall evidence shows the Veteran worked for the same company for over 30 years and quit working in the 1990's due to his nonservice connected back problems. See June 2011 VA posttraumatic stress disorder examination. While the Veteran may have difficulty returning to his former employment due to his conditions, the interference is not considered "marked" or beyond that contemplated by the ratings assigned throughout the appeal period. See Van Hoose v. Brown, 4 Vet. App. 361 (1993) (a disability rating in itself is recognition that there is occupational impairment). In sum, the Board finds no basis for assigning an extraschedular evaluation at any time during the appeal period. 

With regard to the issues decided, the preponderance of the probative evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2017). 

The appeal is denied.


ORDER

For the period since March 9, 2017, entitlement to a rating greater than 40 percent for diabetes mellitus type 2 is denied.

Entitlement to an extraschedular rating for diabetes mellitus type 2, to include the combined effects of diabetes and PTSD, is denied. 




____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs