Citation Nr: 0812265 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-28 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a sinus disorder. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a bilateral knee disability. 5. Entitlement to service connection for PTSD. 6. Entitlement to service connection for coronary artery disease, claimed as a heart condition, to include as secondary to the veteran's service connected diabetes. 7. Entitlement to service connection for hypertension, claimed as a heart condition, to include as secondary to the veteran's service connected diabetes. 8. Entitlement to service connection for bilateral neuropathy of the upper extremities, to include as secondary to the veteran's service connected diabetes. 9. Entitlement to an increased initial evaluation for bilateral peripheral neuropathy of the left and right lower extremities, currently evaluated as 10 percent each. 10. Entitlement to an effective date earlier than June 18, 2003, for the grant of service connection for Diabetes Mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The veteran served on active duty from November 1968 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for a sinus disorder, and a bilateral knee disability, and entitlement to an increased initial evaluation for bilateral peripheral neuropathy of the left and right lower extremities, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran has never been diagnosed with tinnitus. 2. The evidence does not show that the veteran had a back disability in service, and no evidence has been presented linking the veteran's current back complaints to service. 3. The veteran has never been diagnosed with PTSD. 4. The preponderance of the evidence of record indicates that the veteran's coronary artery disease is not related to service, or to his service connected diabetes. 5. The preponderance of the evidence of record indicates that the veteran's hypertension is not related to service, or to his service connected diabetes. 6. The preponderance of the evidence of record indicates that the veteran does not have bilateral neuropathy of the upper extremities related to service, or to his service connected diabetes. 7. The veteran's initial claim seeking service connection for diabetes mellitus was received on June 18, 2004, more than one year after the effective date of liberalizing legislation authorizing presumptive service connection for Type II diabetes in Vietnam veterans based on exposure to herbicides; the veteran's current effective date for the grant of service connection for his diabetes is June 18, 2003, one year prior to the veteran's claim. CONCLUSIONS OF LAW 1. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. A back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2007). 3. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 4. Coronary artery disease was not incurred in or aggravated by service, nor is it secondary to the veteran's service connected diabetes. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310 (2007). 5. Hypertension was not incurred in or aggravated by service, nor is it secondary to the veteran's service connected diabetes. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309(a), 3.310 (2007). 6. Bilateral neuropathy of the upper extremities was not incurred in or aggravated by service, nor is it secondary to the veteran's service connected diabetes. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 7. An effective date prior to June 18, 2003, for the grant of service connection for diabetes mellitus, is not warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.114, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In July 2004, February 2005, August 2005, March 2006, and October 2006, the agency of original jurisdiction (AOJ) sent letters to the veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The March 2006 letter also provided the notice of the disability rating and effective date regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although these notice letters postdated the initial adjudication, the claims were subsequently readjudicated. See Prickett v. Nicholson, 20 Vet. App. 370 (2006) (indicating that the issuance of a fully compliant notification letter followed by readjudication of the claim, such as in a SSOC (SSOC), is sufficient to cure the timing defect). No prejudice has been alleged, and none is apparent from the record. The VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records and providing VA examinations. Consequently, the duty to notify and assist has been satisfied, as to those claims being decided in this decision. Service connection claims Applicable laws provide that in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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(b). Service connection may also be granted on a presumptive basis for certain chronic disabilities, to include arthritis and cardiovascular-renal disease to include hypertension, when manifested to a compensable degree within the initial post- service year. 38 C.F.R. §§ 3.307, 3.309(a) (2007). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that the veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. Further, secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for PTSD requires (i) medical evidence diagnosing PTSD, (ii) a link, established by medical evidence, between current symptoms and an in-service stressor, and (iii) credible supporting evidence that the in- service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also 38 U.S.C.A. § 1154(b); Cohen v. Brown, 10 Vet. App. 128 (1997). The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Taking into account all relevant evidence, the Board finds that service connection for tinnitus is not warranted. In this regard, the Board notes that the veteran's service medical records contain no reports of complaints of, or treatment for, tinnitus. In fact, there is no evidence in the veteran's claims file that the veteran has, at any time, before, during, or after service, been diagnosed with tinnitus. Incumbent on a grant of service connection is a finding that the veteran has the disability for which service connection is claimed. As there is no evidence of record that the veteran has ever been diagnosed with tinnitus, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Taking into account all relevant evidence, the Board finds that service connection for a back condition is also not warranted. In this regard, the Board notes that the veteran's service medical records contain no reports of complaints of, or treatment for, any back disability. The only medical record in the veteran's claims file pertaining to any back problem is a July 2004 report of private outpatient treatment, which indicates that the veteran was seen once with complaints of back pain; X-rays were negative at that time, and the assessment was that the back pain was likely acute and musculoskeletal; there is no indication that the veteran was seen again for complaints of back pain, and this finding was not linked to the veteran's period of service in any way. Therefore, with no evidence of record showing any complaints of, or treatment for, any back disability in service, and with no evidence of record dated any earlier than 28 years after the veteran's separation from service showing any back problems at all (to include arthritis), and with no evidence having been presented to link the veteran's complaint of low back pain in July 2004 to service, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Taking into account all relevant evidence, the Board finds that service connection for PTSD is also not warranted. In this regard, the Board notes that the veteran's service medical records contain no reports of complaints of, or treatment for, PTSD or any psychiatric disorder. In fact, there is no evidence in the veteran's claims file that the veteran has, at any time, before, during, or after service, been diagnosed with PTSD. Starting in 2003, the veteran received several psychiatric diagnoses, including anxiety and depression; however, none of these diagnoses has been related to the veteran's service. Incumbent on a grant of service connection is a finding that the veteran has the disability for which service connection is claimed. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As there is no evidence of record that the veteran has ever been diagnosed with PTSD, the Board finds that the preponderance of the evidence of record is against a grant of service connection for this disability. Taking into account all relevant evidence, the Board finds that service connection for coronary artery disease and hypertension, claimed as a heart condition, to include as secondary to the veteran's service connected diabetes, is denied. Initially the Board points out that the veteran's service medical records do not show complaints of, or treatment for, any heart disorder, nor is there any evidence of record linking coronary artery disease or hypertension to service, or that it either was diagnosed within a year of service. However, the veteran is not claiming these disorders are directly related to service, but rather, is claiming they are directly related to his service connected diabetes. In support of his claims, the veteran has submitted a statement from his private physician, dated June 2004. In that form statement, the veteran's physician checked off several boxes pertaining to complications which he felt were related to the veteran's diabetes, including a box marked "cardiovascular"; next to that box, the veteran's treating physician wrote "triple bypass surgery". While the Board does give some weight to this statement, as it is made by the veteran's treating physician, this examiner does not offer any rationale in support of his opinion, nor do any of the outpatient treatment records received from this physician indicate that the veteran's heart conditions are linked to service or the veteran's service connected diabetes; therefore the Board finds them to be of limited probative value. The veteran received a VA examination in October 2004; as a result of that examination, the examiner opined that the veteran's hypertension and coronary artery disease were not related to service, nor were they related to his service connected diabetes. In support of this opinion, the physician indicated that there was no evidence of record to suggest that the veteran's diabetes had either caused or aggravated his coronary artery disease or hypertension. The Board finds this opinion particularly probative because it is based on a thorough examination of the veteran, as well as a thorough review of the veteran's claims file. See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (unpublished decision), cert. denied 120 S. Ct. 1252 (2002) (it is not error for the Board value one medical opinion over another, as long as a rationale basis for doing so is given). Thus, the Board finds, weighing the evidence as noted above, that the preponderance of the evidence of record is against a finding that the veteran's hypertension and coronary artery disease are related to service, to include as secondary to the veteran's service connected diabetes. Taking into account all relevant evidence, the Board finds that bilateral neuropathy of the upper extremities, to include as secondary to the veteran's service connected diabetes, not warranted. Initially, the Board points out that the veteran's service medical records are negative for complaints of, or treatment for, neuropathy of the upper extremities, and no evidence has been presented linking these disabilities directly to service. However, the veteran does not allege these disabilities are directly related to service, but rather, that they are secondary to the veteran's service connected diabetes. A November 2002 private treatment record indicates that the veteran had paraesthesia in his right hand which could be secondary to carpal tunnel syndrome. The physician also indicated that, with the veteran's risk factors, including diabetes, hypertension, smoking and cholesterol, that small vessel ischemia was also a very strong possibility. While the veteran's diabetes was listed as a risk factor for small vessel ischemia that was possibly causing the veteran's symptoms, because this was only considered as one of several possibilities for the veteran's upper extremity neuropathy, the Board finds this opinion of limited probative value. An August 2004 report of VA examination indicates that the veteran had a diagnosis of positive Phalen's sign of both upper extremities with subjective complaints of numbness. The examiner indicated that the veteran's neuropathy of the upper extremities was more likely than not secondary to carpal tunnel syndrome. In support of this opinion, the examiner indicated that the veteran was noted to have changes of the cervical spine, and the Phalens's sign was positive, which is consistent with a diagnosis of carpal tunnel syndrome. The examiner also pointed out that the veteran had no complaints of peripheral neuropathy during this examination, and he indicated that it would be most unusual for the veteran to have peripheral neuropathy affecting the upper extremities without evidence of the lower extremities being affected first (peripheral neuropathy of the lower extremities was diagnosed later, in January 2005). The examiner stated therefore that the veteran's neuropathy of the upper extremities was not at all likely to be secondary to diabetes. The Board finds this opinion particularly probative because it was made based on a thorough review of the veteran's records and a thorough examination of the veteran, and because the examiner offered a rationale for his opinion. Thus, the Board finds, weighing the evidence as noted above, that the preponderance of the evidence of record is against a finding that the veteran's bilateral neuropathy of the upper extremities is related to service, to include as secondary to the veteran's service connected diabetes. As the preponderance of the evidence is against all these claims, the benefit-of-the-doubt doctrine does not apply, and they must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). Entitlement to an effective date earlier than June 18, 2003, for the grant of service connection for Diabetes Mellitus. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. This rule holds true in cases of de novo claims for service connection, except when a claim is received within one year after separation from service, in which case the effective date of the award is the day following separation from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400, 3.400(b) (2)(i) (2007). A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). VA must look to all communications from the appellant which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2007); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of outpatient or hospital examination will be accepted as the date of receipt of a claim for increased benefits, but only when such reports relate to an examination or treatment of a disability for which service connection was previously established. 38 C.F.R. § 3.157(b). When a claimant is granted benefits based on liberalizing legislation/issue, the effective date of the award is based on the facts found, but may not be earlier than the effective date of the liberalizing law. Specifically: (1) If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). Here, VA issued regulations creating a presumption of service connection for diabetes mellitus, type II, effective May 8, 2001. 66 Fed. Reg. 23,166 (May 8, 2001). The veteran appears to be arguing that he should be granted an effective date for this claim of either the date of the liberalizing regulation, or the date of his diagnosis of diabetes, also in 2001. However, the veteran did not file a claim seeking service connection for diabetes within a year of the effective date of this liberalizing regulation, nor has he argued that he filed a claim any earlier than June 18, 2004. These facts are not in dispute. Consequently, the effective date of award of service cannot be retroactive to more than one year from the date of receipt of the veteran's claim (in June 2004). Since the effective date assigned by the RO is already one- year prior to the date the claim was received, there is no legal basis for establishing an earlier date. Accordingly, the veteran's claim must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a back condition is denied. Entitlement to service connection for PTSD is denied. Entitlement to service connection for coronary artery disease, claimed as a heart condition, to include as secondary to the veteran's service connected diabetes, is denied. Entitlement to service connection for hypertension, claimed as a heart condition, to include as secondary to the veteran's service connected diabetes, is denied. Entitlement to service connection for bilateral neuropathy of the upper extremities, to include as secondary to the veteran's service connected diabetes, is denied. Entitlement to an effective date earlier than June 18, 2003, for the grant of service connection for Diabetes Mellitus, is denied. REMAND As to the veteran's claim of entitlement to service connection for a sinus condition, the Board notes that the veteran's service medical records show that he was seen multiple times in service for sinus problems. They also show that on his November 1968 report of medical history prior to enlistment, he reported a history of hay fever. More recently, the veteran has been diagnosed with chronic sinusitis, rhinitis, asthma, chronic obstructive pulmonary disease (COPD), and ecstatic emphysema. As the veteran was seen several times in service for diagnoses of sinusitis, and as he currently has a diagnosis of chronic sinusitis, the Board is of the opinion that the veteran should be provided with a VA examination, in order to determine whether his sinus problems are related to his in service multiple bouts of sinusitis. As to the veteran's claim of entitlement to service connection for a bilateral knee condition, the Board notes that, while the veteran's separation examination report dated September 1976 did not note any problems with the veteran's knee, the veteran's separation report of medical history dated September 1976 did note that the veteran reported a painful right knee upon exertion. Furthermore, the veteran was seen in service in August 1976 with reports of knee pain, and was diagnosed with chondromalacia patella. Recently, the veteran has reported that he had surgery on his left knee in August 2004. An MRI of the veteran's left knee in June 2004 noted a medial meniscal tear, joint effusion, mild osteoarthritis, and a possible ganglion cyst of the anterior cruciate ligament. As the veteran had a knee disability in service, and currently has a knee disability, the Board is of the opinion that he should be provided with a VA examination, in order to determine whether his current knee disability or disabilities are related to his in service knee injury. As to the veteran's claim of entitlement to an increased initial evaluation for bilateral peripheral neuropathy of the left and right lower extremities, the Board notes that the veteran has never had a VA examination to determine the severity of this condition. When the veteran last had a VA peripheral nerves examination, in August 2004, he was found to have no complaints of peripheral neuropathy affecting the lower extremities. The veteran was granted service connection for peripheral neuropathy of the lower extremities by a June 2005 rating decision, based on a January 10, 2005, treatment record which indicated that the veteran had been diagnosed with peripheral neuropathy of the feet, likely secondary to diabetes. As the veteran has never been provided a VA examination in order to determine the severity of his service connected bilateral peripheral neuropathy of the left and right lower extremities, the Board finds that, upon remand, the veteran should be provided with such an examination. Accordingly, the case is REMANDED to the AMC for the following action: 1. The AMC should contact the veteran and request that he provide the names and addresses of all health care providers who have recently treated him for his knees, bilateral upper extremity peripheral neuropathy, or his sinusitis. After any required releases are obtained, please secure all identified records, to include any records from the veteran's reported August 2004 knee surgery. If any identified records are unavailable, that should be noted in the veteran's claims file. 2. After the above development is completed, and the relevant records associated with the veteran's claims file, the veteran should be provided with a VA examination for his knees. The claims folder, and a copy of this remand, should be made available to the examiner for review prior to the examination, and the examiner should indicate that these have been reviewed in his report. All required testing should be undertaken. The examiner is requested to indicate what knee disabilities the veteran currently has. For any identified knee disability, the examiner is requested to indicate whether it is at least as likely as not that any knee disability the veteran has currently is related to service. The examiner should specifically comment on the veteran's diagnosis of chondromalacia patella in service, in offering his opinion(s). A complete rationale of any opinion expressed should be included in the examination report. 3. The veteran should also be provided with a VA examination for his sinusitis. The claims folder, and a copy of this remand, should be made available to the examiner for review prior to the examination, and the examiner should indicate that these have been reviewed in his report. All required testing should be undertaken. If the veteran is diagnosed with sinusitis, the examiner is requested to indicate whether it is at least as likely as not that the veteran's sinusitis is related to service. The examiner should specifically comment on the veteran's diagnoses of sinusitis in service, in offering his opinion(s). A complete rationale of any opinion expressed should be included in the examination report. 4. The veteran should also be provided with a VA examination for his service connected bilateral peripheral neuropathy of the lower extremities. The claims folder, and a copy of this remand, should be made available to the examiner for review prior to the examination, and the examiner should indicate that these have been reviewed in his report. All required testing should be undertaken. The examiner should specifically comment on whether there is muscular atrophy due to this disability. A complete rationale of any opinion expressed should be included in the examination report. 5. After completion of the foregoing and after undertaking any further development deemed warranted by the record, the AMC should review this claim on appeal in light of all pertinent evidence and legal authority. The AMC must review this claim on the merits, and provide adequate reasons and bases for its determinations, addressing all issues and concerns that were noted in this REMAND. If any benefit sought continues to be denied, the veteran and his representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to cooperate by reporting for the examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2007). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs