Citation Nr: 1807644 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-14 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial 40 percent rating for diabetes mellitus from March 23, 1988, to April 27, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2004 and August 2006 rating decisions of the Department of Veterans Affairs (VA). As discussed by the Board in its January 2014 Remand, and again included herein, a discussion of the procedural history is warranted in order to clarify the issues on appeal. In August 2001, the RO awarded the Veteran service connection for diabetes mellitus and assigned a 20 percent rating, effective from July 9, 2001. In February 2002, the RO assigned an earlier effective date of May 8, 1990, for the award of service connection for diabetes mellitus. The 20 percent rating was confirmed. In August 2004, the RO assigned an earlier effective date of December 3, 1988, for the award of service connection for diabetes mellitus. The 20 percent rating was confirmed. The Veteran was notified of this decision and of his appellate rights by letter dated September 8, 2004. New and material evidence concerning the severity of the Veteran's diabetes mellitus was received within one year of this decision, including a statement from John N. Larrimer, M.D., dated February 21, 2005. See 38 C.F.R. § 3.156(b) (2017). In August 2006, the RO denied entitlement to a rating in excess of 20 percent for diabetes mellitus. The Veteran was notified of this decision and of his appellate rights by letter dated September 6, 2006. In December 2006, the Veteran submitted a Notice of Disagreement (NOD) with the rating assigned for his diabetes mellitus. In October 2009, the RO granted a 40 percent rating for diabetes mellitus effective from April 28, 2009. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in June 2012. A copy of the hearing transcript has been associated with the claims file. In January 2014, the Board remanded the claim on appeal for additional development. By a June 2016 rating decision of a Decision Review Officer (DRO), the RO assigned an earlier effective date of March 23, 1988, for the award of service connection for diabetes mellitus. In a March 2016 statement, the Veteran reported that "at this time I am only asking for reconsideration of my claim for diabetes mellitus to be upgraded from 20 percent to 40 percent for the period of December 3, 1988, to April 27, 2009." See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). Thus, while the claim was previously captioned in the January 2014 remand as entitlement to an initial rating higher than 20 percent for diabetes mellitus prior to April 27, 2009, and to a rating excess of 40 percent from April 28, 2009, forward, it is now captioned herein to reflect the Veteran's limit on his appeal of this issue. In January 2014, the Board had also remanded claims of entitlement to an effective date earlier than December 3, 1988, for the award of service connection for diabetes mellitus and entitlement to a higher rating for carpal tunnel syndrome of the right upper extremity with peripheral neuropathy, rated as noncompensably disabling from March 17, 1993, to March 18, 2004, and as 30 percent disabling from March 19, 2004, forward, for the issuance of a statement of the case (SOC) in accordance with Manlincon v. West, 12 Vet App 238 (1999). The RO issued a June 2016 SOC as to the issues remanded for such, as well as a Supplemental SOC (SSOC) as to the issue of entitlement to a higher rating for diabetes mellitus. In July 2016, the Veteran filed a VA Form 9, Substantive Appeal. On that form, he marked that he was only appealing one issue, and discussed his increased rating for diabetes mellitus claim. He also enclosed an SSOC Notice Response (specifically referenced on his VA Form 9) stating that he wanted his claim returned to the Board, thereby indicating that his Form 9 was in response to the June 2016 SSOC on the claim for a higher rating for diabetes and not in response to the June 2016 SOC on the other two claims. The issue of entitlement to a higher rating for diabetes mellitus was already perfected and before the Board. On his VA Form 9, the Veteran did not otherwise identify or refer to the two issues remanded by the Board for the issuance of an SOC. Because the July 2016 VA Form 9 did not refer to entitlement to an initial compensable rating for carpal tunnel syndrome of the right upper extremity with peripheral neuropathy from March 17, 1993 to March 18, 2004, and to a rating in excess of 30 percent from March 19, 2004, forward, and entitlement to an earlier effective date for an award of service connection for diabetes mellitus, it cannot be accepted as a valid substantive appeal as to either of those issues. Importantly here, unlike the situation in Percy, the Veteran did not file a VA Form 9 addressing those issues. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Thus, this is not a situation where an untimely appeal was filed. Similarly, a long period of time has not passed during which the RO may have treated the issues as timely appealed. No further action was taken which might have led the Veteran to believe that a Substantive Appeal had been filed as to the issues, and he made no further assertions concerning these issues. This is not a situation where the timely filing of a substantive appeal may be waived. Simply stated, a substantive appeal was not filed as to these issues. Thus, those issues are not within the Board's jurisdiction to further review at this time. FINDING OF FACT From March 23, 1988, to April 27, 2009, the Veteran's diabetes mellitus required insulin, a restricted diet, and regulation of activities. CONCLUSION OF LAW From March 23, 1988, to April 27, 2009, the criteria for a 40 percent rating for the Veteran's diabetes mellitus required insulin have been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102 , 4.3, 4.119, Diagnostic Code 7913 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Diabetes mellitus is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119 . 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). Here, the Veteran's diabetes mellitus is rated as 20 percent disabling prior to April 28, 2009, which requires either insulin or an oral hypoglycemic agent and a restricted diet. The next highest evaluation, 40 percent, requires insulin, a restricted diet, and regulation of activities. 38 C.F.R. § 4.119 , Diagnostic Code 7913. 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, those regulations do not apply where the rating schedule establishes successive criteria. Here, the evidence shows that the Veteran's diabetes mellitus required that he use insulin and remain on a restricted diet for the entire appellate period prior to April 28, 2009. See Discharge Summary, Grant Medical Center, dated March 27-30, 1988. Thus, the pertinent issue at hand is whether it was also manifested by regulation of activities in terms of a medical professional advising or prescribing avoidance of strenuous occupational and recreational activities in order to manage his diabetes. See Tatum, 23 Vet. App. at 156. The Veteran testified that he had been advised by his doctors to restrict his activities because of his diabetes since 1988. The medical evidence shows that he had poor diabetic control with his glucose on several occasions. See Letter from J. Larrimer, M.D., dated December 8, 2003; VA examination report, dated September 26, 2005. In a September 2003 statement, W. Morris, M.D. reported that the Veteran had been an insulin dependent diabetic since 1988, was on a restricted diabetic diet, and that his activities were restricted due to his diabetes. However, on a April 2004 VA examination the Veteran denied that he had any activity restrictions because of his diabetes. On VA examination in June 2009, the examiner noted that the Veteran's diabetes was fairly well controlled, but that he had restriction of activities because of his diabetes. In view of the foregoing, the Board resolves reasonable doubt in the Veteran's favor and finds that his diabetes mellitus was manifested by the need for regulation of activities for the entire appellate period prior to April 28, 2009. Accordingly, a 40 percent rating is warranted for diabetes mellitus from March 23, 1988, to April 27, 2009. This constitutes a full grant of the benefit sought on appeal by the Veteran. ORDER Entitlement to an initial 40 percent rating for diabetes mellitus from March 23, 1988, to April 27, 2009, is granted. ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs