Citation Nr: 0003332 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 97-26 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 60 percent disabling. 2. Entitlement to service connection for primary hypothyroidism, claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for malabsorption syndrome, claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from August 1979 to September 1983. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a September 1996 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). The December 1997 statement in support of the claim constituted a claim for MEN Syndrome, defined as (mixed) multiple endocrine neoplasia syndrome, with components including: Hashimoto's thyroiditis; pernicious anemia; hypothyroidism; type I diabetes mellitus; seizure; major depression. The RO has not acted upon this claim. Claims for service connection for hypothyroidism and malabsorption syndrome have been perfected for appeal, and are the subject of a Remand below. The Board refers the claim for service connection for MEN syndrome to the RO to take appropriate action with respect to this claim, as the Board does not have jurisdiction over this claim. Jurisdiction does indeed matter and it is not "harmless" when the VA during the claims adjudication process fails to consider threshold jurisdictional issues. Absent a decision, a notice of disagreement, a statement of the case and a substantive appeal, the Board does not have jurisdiction of the issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993), Black v. Brown, 10 Vet. App. 279 (1997), Shockley v. West, 11 Vet. App. 208 (1998). An application that is not in accord with the statute shall not be entertained. 38 U.S.C.A. § 7108 (West 1991). Furthermore, this Acting Board Member cannot have jurisdiction of this issue. 38 C.F.R. § 19.13 (1999). The veteran should be informed of any determination by separate letter that includes notification of appellate rights. 38 C.F.R. § 3.103 (1999). If there is any intent to appeal, there is an obligation to file a notice of disagreement and a substantive appeal after the issuance of the statement of the case. 38 C.F.R. § 20.200 (1999). Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). FINDINGS OF FACT 1. Diabetes mellitus is manifested by frequent hypoglycemic reactions, restricted diet, unemployability, twice-daily use of insulin and psychiatric complications. 2. Medical evidence grouping service connected diabetes mellitus with hypothyroidism and pernicious anemia as part of a syndrome has been presented. CONCLUSIONS OF LAW 1. Diabetes mellitus is 100 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.119, Diagnostic Code 7913 (1999). 2. The claims for service connection for hypothyroidism and malabsorption syndrome (pernicious anemia) are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Diabetes Mellitus Service connection for diabetes mellitus was granted in July 1984 and assigned a 40 percent evaluation. The claim on appeal stems from a September 1996 rating decision wherein the RO increased the evaluation to 60 percent, effective as of December 11, 1995, the date of receipt by VA of the veteran's claim for an increased rating. The claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on his contentions that diabetes mellitus warrants a higher evaluation. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The RO has met its duty to assist the appellant in the development of his claim under 38 U.S.C.A. § 5107 (West 1991). The appellant has submitted private medical statements and a VA examination was conducted in February 1996. Furthermore, there is no indication from the appellant or his representative that there is outstanding evidence that would be relevant to this claim. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While evaluation of a service-connected disability requires review of the appellant's medical history, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, although the Board has reviewed all the evidence of record, it finds that the most probative evidence is that which has been developed immediately prior to and during the pendency of the claim on appeal. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant has been rated under the schedule for rating endocrine disorders, and specifically under Diagnostic Code 7913 for diabetes mellitus. This appeal is based on a September 1996 rating decision that increased the evaluation from 40 percent to 60 percent. The criteria for evaluating endocrine disorders changed in June 1996. The claim was filed in December 1995. When a regulation changes after a claim has been filed but before the appeal process has been completed, the version most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). See 38 U.S.C.A. § 5110. Thus, the Board will lay out both the pre-1996 criteria and the post-1996 criteria. Under the pre-1996 criteria for evaluating diabetes mellitus, a 100 percent evaluation was warranted for pronounced diabetes mellitus that was uncontrolled, as would be manifested by repeated episodes of ketoacidosis or hypoglycemic reactions, restricted diet and regulation of activities; by progressive loss of weight and strength; or by severe complications. A 60 percent evaluation required severe diabetes mellitus with episodes of ketoacidosis or hypoglycemic reactions, but with considerable loss of weight and strength and with mild complications, such as pruritus ani, mild vascular deficiencies, or beginning diabetic ocular disturbances. A 40 percent evaluation was warranted for moderately severe diabetes mellitus that required large insulin dosage, restricted diet, and careful regulation of activities, i.e., avoidance of strenuous occupational and recreational activities. A 20 percent evaluation required moderate diabetes mellitus that was controlled by a moderate insulin or oral hypoglycemic agent dosage and a restricted (maintenance) diet where there was no impairment of health or vigor or limitation of activity. A 10 percent evaluation was warranted for mild diabetes mellitus that was controlled by a restricted diet, without insulin, where there was no impairment of health or vigor or limitation of activity. Definitely established complications such as amputations, impairment of central visual acuity, peripheral neuropathy with definite sensory or motor impairment or definitely established arteriosclerotic focalizations were to be separately rated under the applicable diagnostic codes. Under the post-1996 criteria for rating the disabling effects of diabetes mellitus, a 100 percent disability rating will be assigned when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, such as 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. A 60 percent disability rating will be assigned when 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 40 percent disability rating is for assignment when diabetes requires insulin, restricted diet, and regulation of activities. Diabetes that requires insulin and a restricted diet or oral hypoglycemic agents and restricted diet warrants a 20 percent evaluation. When managed by a restricted diet only, a 10 percent evaluation is warranted. Compensable complications of diabetes are separately evaluated unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. A December 1995 letter from Dr. L. P. indicated that the appellant was diagnosed with type I diabetes mellitus, characterized as brittle. He had frequent hypoglycemic episodes. He was being treated with insulin and a diabetic diet. Laboratory results involving urinalysis and blood analysis from 1995 were submitted. A VA examination was conducted in February 1996. The appellant complained of visual problems and frequent episodes of hypoglycemia. He was using insulin with an injection in the morning and in the evening. His weight was 175 pounds and stable. The examiner reported frequent hypoglycemia with ketosis-onset only. The appellant followed his diet strictly and had to cut down on exercise because of the frequency of hypoglycemia. His weight had been stable following an initial loss. There was no history of anal pruritus. He denied intermittent claudication and transient ischemic attacks, and there was no cyanosis or clubbing. He reported visual problems since the onset of diabetes mellitus and had been told he had glaucoma. This was not being treated. Type I diabetes mellitus was diagnosed with frequent hypoglycemic reactions. Dr. R. S. B. wrote in August 1996 that he had treated the appellant since March 1996 for conditions including diabetes mellitus. The appellant had recurrent transient global amnesia that was related to hypoglycemic bouts. He was treated with two daily doses of insulin. Dr. L. P. submitted a medical report in August 1996. He had treated the appellant for diabetes mellitus type I for 11 years. The appellant had two car accidents due to severe hypoglycemic episodes and seizures. His weight was 180 pounds. He was diagnosed with uncontrolled type II [sic] diabetes mellitus; severe hypoglycemic episodes; seizures; pernicious anemia; primary hypothyroidism; and major depression. He was being treated with 2 insulin doses daily. The doctor concluded that the appellant had very brittle diabetes with ups and downs that frequently produced seizures at work, while sleeping and while driving a car. He was a very complicated patient. The veteran was very depressed due to an inability to work and he was very risky for any job. Dr. L. P. indicated that he had advised the appellant to stop working. In an August 1996 letter, Dr. E. B., a psychiatrist, indicated that the appellant had a "psychiatric disorder" that was a reaction to and in part a result of serious and severe physical ailments that included brittle diabetes mellitus and hypoglycemic episodes. The appellant was disabled from a psychiatric standpoint. He should not engage himself in gainful activities. A December 1997 letter from Dr. L. P. indicated that treatment for the appellant's diabetes mellitus included insulin and a diabetic diet. Comparing the pre-1996 criteria to the post-1996 criteria, the Board believes that neither one is more favorable to the appellant than the other. The appellant's disability falls within the 100 percent evaluation under both criteria. Because the RO considered the appellant's disability under both criteria (although on separate occasions), a Bernard issue is not raised by the Board's consideration of both criteria in this decision. Bernard v. Brown, 4 Vet. App. 384 (1993). The appellant reportedly has had frequent episodes of hypoglycemia, some resulting in car accidents. He requires two doses of insulin daily, a restricted diet and had been medically advised to stop work. The RO granted a total rating for compensation based on individual unemployability due to his service-connected disabilities in December 1996, when diabetes mellitus was rated 60 percent disabling and chronic maxillary sinusitis was rated noncompensably disabling, thereby recognizing that diabetes mellitus rendered the appellant unemployable. Although his weight has been stable and it is unclear how often he visits his medical doctors, private medical opinions have attributed depression and transient global amnesia to his diabetes mellitus. He was disabled from a psychiatric standpoint due, in part, to diabetes mellitus. The psychiatric disability would be compensable if separately evaluated. Under either the pre-1996 or post-1996 criteria, the evidence supports a 100 percent evaluation. Service Connection Claims Service connection for primary hypothyroidism and service connection for malabsorption, both claimed as secondary to service-connected diabetes mellitus, was denied in September 1996 on the basis that the claims were not well grounded. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a) (1999). Additional disability resulting from the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439 (1995). A well-grounded claim for service connection generally requires medical evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1999); Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the instant case, competent evidence linking diabetes mellitus to the other claimed disabilities is necessary. Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Establishing direct service connection for a disability that was not clearly present in service requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Moreover, establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection cited above and of sufficient weight to make the claim plausible and capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy, 1 Vet. App. at 81. The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Grottveit, 5 Vet. App. at 93. An appeal was perfected in regard to the September 1996 rating decision, and in December 1997 the appellant submitted a statement in support of the claim wherein he contended that his physician had told him that his diabetes mellitus was part of a larger syndrome, and that therefore the other conditions associated with the syndrome should also be service connected. Attached to his statement was a December 1997 letter from Dr. L. P., which indicated that the appellant had been under his care for MEN Syndrome, defined as (mixed) multiple endocrine neoplasia syndrome. The components of the appellant's MEN syndrome were listed as: Hashimoto's thyroiditis; pernicious anemia; hypothyroidism; type I diabetes mellitus; seizures; and major depression. The Board has noted that the same physician, in a December 1995 letter, listed the appellant's diagnoses to include malabsorption syndrome with magaloblastosis (B12 deficiency). Malabsorption syndrome was not listed as part of the symptomatology associated with MEN syndrome. However, pernicious anemia is listed as symptomatology associated with the appellant's MEN syndrome. Pernicious anemia is defined as "[a] megaloblastic anemia usually occurring in older adults, caused by impaired intestinal absorption of vitamin B12 due to the lack of availability of intrinsic factor." Dorland's Illustrated Medical Dictionary 73 (28th ed. 1994). Accordingly, the Board concludes that the physician has used two different terms for the same condition and, by including pernicious anemia as part of MEN syndrome, malabsorption syndrome was also thereby included. The Board finds that the grouping of the listed conditions by a medical doctor under a syndrome diagnosis is sufficient to create the possibility or plausibility required to well- ground the appellant's claims for service connection for hypothyroidism and malabsorption syndrome, each claimed as secondary to service-connected diabetes mellitus. The use of the term "syndrome" suggests a medical relationship. The inclusion of the service-connected diabetes mellitus as part of a syndrome suggests a relationship between the service- connected diabetes mellitus and the other listed symptoms or conditions. Therefore the claims for service connection for hypothyroidism and malabsorption syndrome are well grounded. The RO has not met its duty to assist the appellant in the development of the claims for service connection for hypothyroidism and malabsorption syndrome under 38 U.S.C.A. § 5107 (West 1991). The doctor's letter, although sufficient to well ground the claim, lacks a necessary medical explanation regarding the association of the syndrome components to service or to service-connected diabetes mellitus. The MEN syndrome diagnosis is in conflict with earlier medical evidence submitted in support of the claim. Furthermore, a September 1996 opinion by the Rating Board medical consultant, cited in the September 1996 rating determination, opined that there is no relationship between hypothyroidism or malabsorption syndrome and diabetes mellitus. Further development is necessary to resolve the conflict in the evidence. ORDER A 100 percent evaluation for diabetes mellitus is granted, subject to the controlling regulations applicable to the payment of monetary awards. The claims for service connection for hypothyroidism and malabsorption syndrome, each claimed as due to service-connected diabetes mellitus, are well grounded, and to that extent only the appeal is granted. REMAND Claims for service connection for hypothyroidism and malabsorption syndrome claimed as due to service connected diabetes mellitus are well grounded. The claims are REMANDED for the following action: 1. The RO should schedule the appellant for a VA examination by the appropriate specialist. The examiner should be afforded the opportunity to review the claims folder prior to the examination. The examiner should address the following inquiries of the Board: a) Clarify the appellant's current diagnoses. b) Does the appellant have MEN Syndrome? c) Describe any relationship between diabetes mellitus type I and hypothyroidism or malabsorption syndrome in this appellant. Is hypothyroidism or malabsorption syndrome proximately due to or the result of diabetes mellitus? Is there aggravation of hypothyroidism or malabsorption syndrome by diabetes mellitus? Are the appellant's diabetes mellitus, hypothyroidism and malabsorption syndrome separate entities? 2. The General Counsel, in representing VA before the United States Court of Appeals for Veterans Claims (Court), has noted that the RO has duties. Pursuant to 38 C.F.R. § 3.655 (1999), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the claimant pursuing an original, reopened or claim for an increase fails to report for examination without good cause, the claim will be denied. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The RO must comply with all notification requirements regarding the duty to report and the failure to report for examination. The Remand serves as notice of the regulation. If upon completion of the above action, either or both claims remain denied, the case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. M. S. SIEGEL Acting Member, Board of Veterans' Appeals