Citation Nr: 18148916 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-26 162 DATE: November 8, 2018 ORDER The application to reopen the previously disallowed claim for service connection for bilateral hearing loss is denied. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to a rating in excess of 10 percent for left lower extremity diabetic neuropathy is denied. Entitlement to a rating in excess of 10 percent for right lower extremity diabetic neuropathy is denied. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is denied. Entitlement to an effective date earlier than September 6, 2013 for the award of service connection for diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for bilateral hearing loss was denied in an unappealed rating decision in August 2009. 2. The evidence received since the time of the August 2009 rating decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. 3. The Veteran’s diabetes mellitus is managed with insulin and restricted diet but not by regulation of activities. 4. The Veteran’s bilateral lower extremity diabetic neuropathy is characterized by mild incomplete paralysis of the external popliteal nerve. 5. The Veteran’s right knee patellofemoral syndrome is not characterized by right knee flexion limited to 30 degrees or less. 6. Prior to September 6, 2013, there was no formal claim, informal claim, or expressed intent to file a claim of entitlement to service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The August 2009 rating decision denying service connection for bilateral hearing loss is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence to reopen the claim for service connection for bilateral hearing loss has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 3.385 (2017). 3. The criteria for entitlement to a rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.119, Diagnostic Code 7913 (2017). 4. The criteria for entitlement to a rating in excess of 10 percent for left lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8521 (2017). 5. The criteria for entitlement to a rating in excess of 10 percent for right lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 8521 (2017). 6. The criteria for entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.71a, Diagnostic Code 5260 (2017). 7. The criteria for entitlement to an earlier effective date for the award of service connection for diabetes mellitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to May 2007. She received the Marine Corps Good Conduct Medal; National Defense Service Medal; Iraq Campaign Medal; Global War on Terrorism Service Medal; Sea Service Deployment Ribbon; and, Certificate of Commendation. The issues of service connection for a gynecological disability secondary to diabetes mellitus has been raised by the record in a June 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and the claim is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Application to Reopen the Claim for Service Connection for Bilateral Hearing Loss Generally, a claim which has been denied in an unappealed rating decision or an unappealed Board decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Evidence is considered “new” if it was not previously submitted to agency decisionmakers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the regional office (RO) denied the Veteran’s claim for service connection for bilateral hearing loss in an August 2009 rating decision because the evidence failed to show a current disability. The Veteran did not appeal this decision; therefore, it became final. 38 C.F.R. § 20.1103. The evidence of record at the time of the August 2009 rating decision consisted of service treatment records and the March 2007 VA examination. The March 2007 examination revealed the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 10 20 LEFT 10 15 15 10 10 Speech audiometry revealed speech recognition abilities of 100 percent in both ears. Impaired hearing is considered a “disability” for VA purposes only when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. The evidence at the time of the August 2009 decision did not meet any of these criteria; thus, the evidence failed to demonstrate a current disability. Evidence submitted since the August 2009 consists of the March 2016 VA examination. Audiometric results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 10 LEFT 0 5 0 0 5 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left ear. The results of March 2016 examination also do not meet the criteria of 38 C.F.R. § 3.385. The Board finds that evidence submitted since the August 2009 rating decision is not new and material. There is still no evidence that the Veteran has a current hearing loss disability as defined by regulation. Because the evidence received since the time of the RO’s August 2009 decision does not relate to an unestablished fact necessary to substantiate the Veteran’s claim, the petition to reopen the previously denied claim for service connection for bilateral hearing loss must be denied. Increased Rating for Diabetes Mellitus The Veteran’s diabetes mellitus has been rated under the provisions of 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under DC 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned for diabetes mellitus requiring 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 assigned for diabetes mellitus requiring 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. The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities” with the intention of avoiding hypoglycemic episodes. See Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007); see also VBA Manual M21-1, III.iv.4.M.1.e. Information on Regulation of Activities. Medical evidence is required to support this criterion; 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.” Camacho, 21 Vet. App. at 364. DC 7913 evaluates diabetes mellitus based on successive rating criteria. 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 (2009). For example, the 10 percent evaluation for diabetes mellitus requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366; see also VBA Manual M21-1, III.iv.4.M.1.d. Successive Criteria Requirement for the Next Higher Disability Evaluation. The Veteran contends that she is entitled to a rating in excess of 20 percent for her diabetes mellitus. However, the evidence fails to demonstrate that she requires regulation of activities. The Veteran underwent a VA examination in March 2016. The examination report indicates that she manages her diabetes with restricted diet, insulin and an implanted insulin pump. She did not have two or more visits to her diabetic care provider for episodes of ketoacidosis or hypoglycemia in the prior 12 months. Treatment records show that the Veteran experienced hypoglycemic episodes during her work day, but none required hospitalization. See April 2016 CAPRI, pp. 2, 259, 312. The Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 20 percent for diabetes mellitus. To receive a higher evaluation, the Veteran’s diabetes mellitus would need to require regulation of activities with the intention of avoiding hypoglycemic episodes. The evidence fails to demonstrate that the Veteran’s activities were regulated for the purposes of avoiding hypoglycemic episodes. Rather, the Veteran’s disability has been characterized by the use of insulin, restricted diet, and an implanted insulin pump. The Board acknowledges the Veteran’s statements that her activities are regulated and limited. See June 2016 Form 9, p. 1. However, there is no indication in her treatment records that medical providers have suggested that she refrain from activities in order to avoid hypoglycemic episodes. As the predominant characteristics of the Veteran’s diabetes mellitus are contemplated by the currently assigned 20 percent rating, an increased rating is not warranted. In making this determination, the Board notes that neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Moreover, as the Veteran has not contended, nor does the evidence show that this disability renders her unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings for Right and Left Lower Extremity Diabetic Neuropathy The Veteran’s bilateral lower extremity diabetic neuropathy has been rated under the provisions of 38 C.F.R. § 4.124a, DC 8521. Under DC 8521, a 10 percent rating is warranted for incomplete, mild paralysis of the external popliteal nerve; a 20 percent rating is warranted for incomplete, moderate paralysis; and, a 30 percent rating is warranted for incomplete, severe paralysis. A 40 percent rating is warranted for complete paralysis of the external popliteal as demonstrated by the foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, abduction weakened; anesthesia covers entire dorsum of foot and toes. The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Schedule and the Board must evaluate all the evidence to arrive at an equitable and just decision. 38 C.F.R. § 4.6. The Veteran contends that she is entitled to an increased rating for her bilateral lower extremity neuropathy. However, the evidence shows that her disabilities have been characterized by mild, incomplete paralysis. The Veteran underwent a VA examination in March 2016 and was observed as having mild paresthesias and/or dysesthesias and mild numbness in her bilateral lower extremities. Examination revealed normal light touch to the knee/thigh and ankle/lower leg, and only decreased in feet/toes. The Veteran had decreased vibration sensation, but normal cold sensation. Moreover, the examiner opined that the Veteran's disability resulted in mild incomplete paralysis of her bilateral lower extremities. Treatment records show that the Veteran reported numbness and pain in her feet. See April 2016 CAPRI, pp. 2, 7, 144, 259, 312, 422, 429. The Board finds that the weight of the evidence preponderates against a finding of entitlement to rating in excess of 10 percent for right and left lower extremity neuropathy. In order to receive a higher evaluation, there must be incomplete, moderate paralysis of the external popliteal nerve. The evidence shows that the Veteran’s lower extremity neuropathy has been characterized by mild paresthesias/dysesthesias, mild numbness and pain. There is no indication that the pain was moderate or severe. Accordingly, ratings in excess of 10 percent for left and right lower extremity neuropathy is not warranted. In making this determination, the Board notes that neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366. Increased Rating for Right Knee Patellofemoral Syndrome The Veteran’s right knee patellofemoral syndrome has been rated under the provisions of 38 C.F.R. § 4.71a, DC 5260. Under DC 5260, a 10 percent rating is assigned for flexion of the leg limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and, a 30 percent rating is assigned for flexion limited to 15 degrees. The evidence demonstrates that the Veteran’s right knee patellofemoral syndrome has been characterized by painful motion, flexion limited to 120 degrees and extension to 0 degrees. The Veteran underwent a VA examination in March 2016. On examination, the Veteran’s flexion was to 120 degrees and extension was to 0 degrees. The examiner noted pain and crepitus on examination; there was no evidence of pain with weight bearing. The Veteran reported flare-ups of knee pain that result in stiffness and require that she walk more slowly. Treatment records demonstrate that the Veteran experienced knee pain but could perform a deep knee bend on examination. April 2016 CAPRI, pp. 66, 374, 547. The Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome. To receive a higher evaluation, the Veteran’s right knee flexion must be limited to 30 degrees. The evidence fails to demonstrate that the Veteran’s right knee flexion was limited to 30 degrees at any point during the appellate period. The Board acknowledges the Veteran’s contention that the March 2016 examiner did not conduct range of motion testing, see August 2018 Appellate Brief, p. 3; however, there is no suggestion on the face of the report that the results are in any way questionable, inaccurate, or unreliable. Moreover, there is no medical evidence which suggests that the Veteran’s flexion has been significantly limited as treatment records show she was able to perform a deep knee bend. Thus, a rating in excess of 10 percent for right knee patellofemoral syndrome is not warranted. In making this determination, the Board notes that neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. 366. The Board has considered whether the Veteran would be entitled to a higher rating under a different diagnostic code for her right knee disability. To receive a higher rating, the evidence must demonstrate a finding of right knee ankylosis; recurrent subluxation or lateral instability of moderate severity; cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint; limitation of extension to 15 degrees; or, impairment of the tibia and fibula with moderate knee or ankle disability. The Board finds that the objective medical evidence does not demonstrate any of the aforementioned characteristics in the Veteran’s right knee at any time. Entitlement to an Earlier Effective Date for the Award of Service Connection for Diabetes Mellitus In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA’s possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). Here, the June 2014 rating decision granting service connection for diabetes mellitus assigned an effective date of September 6, 2013—the date of the Veteran’s claim for service connection for the condition. See September 2013 Supplemental Claim, p. 1. The Veteran asserts that the effective date for service connection for diabetes mellitus should be earlier because she was diagnosed with diabetes mellitus prior to September 2013. See April 2015 NOD, p. 1. She does not contend, nor does the evidence show, that she submitted any communication that could be construed as a formal or informal claim for service connection for diabetes mellitus prior to September 6, 2013. See Brannon, 12 Vet. App. at 35. The preponderance of the evidence is against the assignment of an earlier effective date for the award of service connection for diabetes mellitus. The Veteran was diagnosed with diabetes mellitus in May 2008 and submitted her claim for service connection in September 2013. As the date of submission of her claim is the later of the two dates used to determine effective dates, it is the appropriate effective date. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Accordingly, the claim for an earlier effective date for the award of service connection for diabetes mellitus must be denied. (Continued on the next page)   Given the record before it, the Board is unable to find that the evidence for any of the issues on appeal reaches the level of equipoise. See 38 U.S.C. § 5107(a) (2012) (“[A] claimant has the responsibility to present and support a claim for benefits”); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). The Board regrets that it could not reach a more favorable outcome; however, the Board is grateful for the Veteran’s honorable service and this decision is not meant to detract from that service. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel