Citation Nr: 1802747	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  13-28 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an initial increased rating for diabetes mellitus type II with retinopathy, glaucoma, and cataracts, rated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

Matthew Miller, Associate Counsel 





INTRODUCTION

The Veteran served on active duty from October 1947 to January 1970.

This case initially came before the Board of Veterans' Appeals (Board) on appeal from October 2011 and February 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  

The Veteran requested a hearing before the Board; however his representative wrote in October 2016 that the Veteran would be unable to attend the scheduled hearing because of his health. Thus, the Board finds that the request for hearing has been withdrawn and the Board may issue a decision in this case.

In November 2016, the Board remanded the Veteran's appeal for additional evidentiary development, which included the issues of entitlement to service connection for an eye disorder, a mental disorder, and entitlement to special monthly compensation (SMC) based on the need for aid and attendance and/or housebound status.

During the pendency of the appeal, in an October 2017 rating decision, the RO granted service connection for a mental disorder (100 percent disabling), an eye disorder (glaucoma and cataracts that were included in the 20 percent disabling, for diabetes mellitus type II, with retinopathy) and entitlement to SMC based on aid and attendance, all effective the date of the claim, April 22, 2011. As this represents a full grant of the benefits sought, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability ratings or effective date assigned. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 

Despite the 100 percent total rating, there are other potential benefits available to the Veteran, and the remaining matter listed on the title page has since returned to the Board for further consideration. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

For the entire rating period on appeal, the Veteran's service-connected diabetes mellitus type II with retinopathy, glaucoma, and cataracts has not required regulation of activities (avoidance of strenuous occupational and recreational activities).


CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus type II with retinopathy, glaucoma, and cataracts have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012) sets forth VA's duties to notify and assist a claimant with the evidentiary development of a claim for compensation or other benefits. See also 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2017). VCAA notice must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf. The Veteran has been provided satisfactory and timely VCAA notice in advance of the rating decisions on appeal.

VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal.

Pursuant to the Board's November 2016 remand, the AOJ obtained any outstanding records and provided the Veteran with any pertinent VA examinations. The AOJ then issued a supplemental statement of the case in October 2017. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's prior remand. Stegall v. West, 11 Vet. App. 268 (1998).

Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994).

In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.

Analysis

Diabetes mellitus is rated pursuant to Diagnostic Code 7913, 38 C.F.R. § 4.119. In this case, the RO rated the Veteran's diabetes mellitus as 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran asserts that a higher initial rating is warranted.

Under Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes 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 rating is warranted when the diabetes 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. Id.

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). 

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 (2017), those regulations do not apply where the rating schedule establishes successive criteria. The criteria for 60 and 100 percent ratings require "regulation of activities." See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).

The Board notes that the Veteran has received VA and private treatment for his condition.

The Veteran was afforded a VA examination in July 2011. The VA examination report noted that the Veteran was diagnosed with diabetes during 1984. The examiner noted that the Veteran's current treatment consists of restricted diet and both insulin and oral medication. The examiner reported that the Veteran is not restricted in his activities due to diabetes. The examiner also reported no episodes of hypoglycemia or hyperglycemia in recent years.

Pursuant to the Board's November 2016 remand, additional medical treatment records were obtained. A review of these records shows that current treatment consists of restricted diet and both insulin and oral medication. There is no evidence that the Veteran is restricted in his ability to perform activities due to diabetes. Additionally, there are no reported episodes of hypoglycemia in recent years. The medical records also denote treatment for diabetes mellitus type II is in excellent control. Additional medical records show treatment for a number of other conditions. 

To summarize, there is no medical evidence indicating that a medical provider advised the Veteran to restrict his activities in any way for the purpose of treating his diabetes. In fact, the July 2011 VA examiner noted that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus. The Board observes that while it appears that the Veteran is wheelchair-bound and suffers from a number of other health issues, at no time has a medical professional found that the Veteran must restrict his activities solely because of his diabetes mellitus. 

Based on a careful review of all of the evidence, the Board finds that the Veteran's diabetes mellitus type II does not warrant a 40 percent evaluation. The Veteran requires insulin and a restricted diet, but does not require regulation of his activities due to his diabetes. Although the Veteran takes numerous medications, the rating criteria does not provide for higher evaluations based on the number of medications. Rather, the rating criteria require that the Veteran's activity have restrictions as a result of his diabetes to consider a higher evaluation. Here, the evidence does not demonstrate that the Veteran's diabetes mellitus has reached the level of severity necessary for a 40 percent evaluation. Therefore, the Board finds that the Veteran's diabetes mellitus is no more than 20 percent disabling.  No separately ratable vision impairment has been clinically established that would warrant a compensable rating.

In sum, the Board finds that the preponderance of the evidence is against an initial rating in excess of 20 percent for diabetes mellitus type II with retinopathy, glaucoma, and cataracts. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher evaluation, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an initial increased rating for diabetes mellitus type II with retinopathy, glaucoma, and cataracts, rated as 20 percent disabling is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs