09-36 750
09-36 750
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served in Army (1969–1971, Vietnam) and filed claims after a March 2008 diabetes mellitus type II diagnosis following hospitalization.
- RO granted service connection for diabetes mellitus type II with a 20% rating (Jan 2009) and denied service connection for hypertension; claim was appealed to the Board and remanded twice for development.
- VA provided examinations in Feb 2014, Nov 2015, and May 2016; examiners consistently found diabetes managed with insulin and diet but without physician-prescribed regulation of activities or diabetic complications.
- Hypertension diagnosis dated to 2000 (predating diabetes by ~8 years); no in-service or within-one-year post-service hypertension evidence; no confirmed diabetic nephropathy to link diabetes as cause or aggravator.
- Board concluded VA satisfied notice and assistance duties, evidence did not meet conjunctive criteria for a higher diabetes rating, and secondary service connection for hypertension was not shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Increased rating for diabetes >20% | Veteran: needs insulin, restricted diet, and altered activity — warrants higher rating | VA: records/exams show insulin and diet but no physician-ordered activity regulation or complications | Denied — criteria for 40% not met (no regulation of activities) |
| Extraschedular / TDIU | Veteran: condition impairs work (fatigue) — may warrant extraschedular or TDIU | VA: symptoms align with schedular criteria; no unemployability shown; exams say no work impact | Denied — no extraschedular referral; TDIU not raised or supported |
| Service connection for hypertension (secondary) | Veteran: diabetes aggravates hypertension; medical literature links the conditions | VA: hypertension preexisted diabetes; no diabetic nephropathy or medical nexus showing aggravation | Denied — hypertension predates diabetes and no medical evidence diabetes aggravated it |
| VCAA / Adequacy of VA exams | Veteran: entitlement depends on complete development and notice | VA: RO provided VCAA notice and adequate, informed exams | Held adequate — VA satisfied notice and duty to assist |
Key Cases Cited
- Vazquez-Flores v. Shinseki, 580 F.3d 1270 (VCAA notice standards for increased ratings)
- Barr v. Nicholson, 21 Vet. App. 303 (VA must provide adequate medical examinations)
- Camacho v. Nicholson, 21 Vet. App. 360 (conjunctive rating criteria interpretation)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay evidence limitations on complex medical questions)
- Thun v. Peake, 22 Vet. App. 111 (extraschedular referral framework)
- Mauerhan v. Principi, 16 Vet. App. 436 (symptoms comparable to schedular criteria support not referring extraschedularly)
- Johnson v. McDonald, 762 F.3d 1362 (when extraschedular referral is not required)
- Ortiz v. Principi, 274 F.3d 1361 (limits of benefit-of-the-doubt rule)
- Gilbert v. Derwinski, 1 Vet. App. 49 (preponderance standard and benefit-of-the-doubt rule)