Citation Nr: 0727773 Decision Date: 09/05/07 Archive Date: 09/14/07 DOCKET NO. 05-00 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability evaluation in excess of 20 percent for diabetes mellitus. ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from November 1966 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. FINDING OF FACT The veteran's service-connected diabetes requires oral medication and restricted diet, but does not require regulation of activities. CONCLUSION OF LAW The criteria for the assignment of an initial rating in excess of 20 percent for service-connected diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.119, Diagnostic Code 7913 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claim on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify A November 2003 letter provided the veteran with notice of the evidence required to substantiate the claim for an increased rating and explained VA's duty to assist with the development of the veteran's claim. This letter explained what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter requested that the veteran identify or submit to VA any relevant evidence to support his claim. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. In March 2006, the RO provided the veteran with information regarding how disability ratings and effective dates are determined. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO has made reasonable efforts to assist the veteran. The relevant medical evidence identified by the veteran has been obtained and associated with the claims file. The veteran was afforded several VA examinations for the evaluation of the disability on appeal. The veteran has not identified any outstanding evidence. Therefore, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to this claim. II. Analysis of Claim The veteran seeks an increased evaluation for service- connected diabetes mellitus, currently rated as 20 percent disabling. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2006). If two evaluations are potentially applicable, the higher evaluation 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 (2006). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2006). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in the case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diabetes mellitus is evaluated under Diagnostic Code (DC) 7913. A 20 percent disability rating contemplates diabetes mellitus requiring insulin and restricted diet; or oral hypoglycemic agent and restricted diet. The next higher rating of 40 percent requires insulin, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913 (2006). For the reasons set forth below, the Board finds that the criteria for a rating in excess of 20 percent have not been met in this case. The veteran underwent a VA examination in December 2003. The examiner noted that the veteran was on oral medication. The veteran had no hospitalizations directly attributable to diabetes. The VA examiner diagnosed diabetes mellitus, Type 2. The examiner noted that the veteran's diabetes mellitus was well-controlled on oral medication with approximately two hypoglycemic reactions a week. It was reported that the veteran was working as a heavy equipment operator at the time. The veteran underwent another VA examination in January 2005. The veteran reported two to three hypoglycemic episodes a week that were treated with a sweet snack. The veteran denied any hospitalizations for hypoglycemia. The examiner noted diabetes mellitus with good control with oral agents and two to three hypoglycemic reactions weekly, but no hospitalizations. With regard to regulation of activities, the examiner opined that the veteran would only be excluded from heavy manual labor such as a lot of lifting or anything that would cause excessive fluid loss through sweating. The examiner opined, however, that the veteran would not be limited in the performance of manual labor due to the physical activity of the job. The examiner noted that the veteran had been unemployed since July 2004. The veteran reported that he was unable to keep a job because of PTSD. VA outpatient treatment records reflect that the veteran's diabetes mellitus has at times been characterized as poorly controlled. VA records reflect that the veteran has been counseled to maintain an appropriate diet and a regular exercise program. The VA treatment records do not provide any evidence that the veteran's diabetes mellitus requires regulation of activities. The evidence establishes that the veteran requires oral medication and a restricted diet. However, there is no evidence that the veteran's diabetes mellitus requires restriction of activities. Therefore, a rating in excess of 20 percent may not be assigned under DC 7913 at any time during the appeal period. The Rating Schedule is designed to accommodate changes in condition; therefore, the veteran may be awarded an increased evaluation in the future should his disability picture change. See 38 C.F.R. § 4.1. At present, however, a 20 percent evaluation is most appropriate given the evidence of record. The Board concludes that the criteria for an evaluation in excess of 20 percent for diabetes mellitus have not been met. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as there is a preponderance of the evidence against the claim for an increased rating, reasonable doubt may not be resolved in the veteran's favor. Finally, the Board has also considered whether a referral for an extraschedular rating is warranted. The evidence does not reflect that diabetes mellitus, alone, has caused marked interference with employment (i.e., beyond that already contemplated in the assigned rating), or necessitated any frequent periods of hospitalization, such that application of the regular scheduler standards is rendered impracticable. The Board is therefore not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. 3.321(b)(1) (2006) for the assignment of an extraschedular rating. Accordingly, the appeal is denied. There is no evidence showing a disability picture warranting a higher rating at any time during the entire appeal period. ORDER An initial disability rating in excess of 20 percent for diabetes mellitus is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs