Citation Nr: 1007661 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 05-06 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for high cholesterol. 3. Entitlement to service connection for hypertension, including as secondary to the service-connected diabetes mellitus and posttraumatic stress disorder. 4. Entitlement to service connection for elevated eye pressure, to include glaucoma, including as secondary to the service-connected diabetes mellitus, type II. 5. Entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II. 6. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder. 7. Entitlement to a total disability rating for compensation purposes based on individual unemployability due to a service-connected disability. WITNESSES AT HEARING ON APPEAL Appellant and D.B. ATTORNEY FOR THE BOARD L.J. Bakke-Shaw, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This appeal arises before the Board of Veterans' Appeals (Board) from rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issues of entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus, type II, and entitlement to a total rating for compensation purposes based upon individual unemployability (TDIU) addressed in the Remand portion of the decision below are remanded to the RO via the Appeals Management Center in Washington, DC. The issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for an eye disorder caused by VA medical treatment was raised in a VA examination dated in May 2007. This issue has not been developed for appellate review, and is therefore referred to the RO for appropriate consideration. FINDINGS OF FACT 1. In April 2007, prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal of the issue of entitlement to service connection for high cholesterol. 2. In November 2009, prior to the promulgation of a decision by the Board, the Veteran withdrew his appeal of the issue of entitlement to service connection for asbestosis. 3. The medical evidence of record does not establish that hypertension is the result of the Veteran's active service, or his service-connected PTSD and diabetes mellitus, type II. 4. The medical evidence of record does not establish that elevated eye pressure, to include glaucoma, is the result of the Veteran's active service, or his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of service connection for high cholesterol have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of service connection for asbestosis have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2009). 3. Hypertension was not incurred in or aggravated by active military service, nor can hypertension be presumed to have been so incurred, nor is hypertension caused or aggravated by a service-connected disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310(a) (2009). 4. Elevated eye pressure, to include glaucoma, was not incurred in or aggravated by active military service, nor is elevated eye pressure, to include glaucoma, caused by or aggravated by a service-connected disorder. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege a specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. By a July 2004 rating decision, the RO denied service connection for high cholesterol and asbestosis. In August 2004, the Veteran filed a notice of disagreement with the denial for entitlement to service connection for high cholesterol and asbestosis. The Veteran perfected his appeal in February 2005. In an April 2007 written statement, the Veteran stated he wished to withdraw his appeal as to the claim for service connection for high cholesterol. In his November 2009 hearing before the Board, the Veteran stated that he wished to withdraw the issue of service connection for asbestosis. With no allegation of error of fact or law remaining before the Board, the Board does not have jurisdiction to review the appeals and they are dismissed. II. Claims on Appeal VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Letters dated in October 2003, March 2005, March 2006, and April and May 2007, satisfied the duty to notify provisions for the issues of service connection for hypertension and elevated eye pressure, to include glaucoma, after which the claim for service connection was adjudicated. See 38 C.F.R. § 3.159; see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006). Moreover, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the Veteran what was necessary to substantiate his claims for service connection and as such, the essential fairness of the adjudication was not affected. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Moreover, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and indicated private medical records have been obtained. Adequate VA examinations were provided to the Veteran in connection with his claims. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no other indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 493. III. Service Connection Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Moreover, pertinent regulations provide for a grant of secondary service connection where a disability is determined to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Further, where service connection is sought on a secondary basis, service connection could be granted for a disability which was not only proximately due to or the result of a service-connected condition, but could also be granted where a service- connected disability had aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1994) (en banc). Hypertension In addition to the above, in the case of hypertension, service connection may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran argues that his hypertension is the result of salt tablets he had to take while on active service in Vietnam, and a pattern of a high salt intake after his discharge. In the alternative, he argues that his hypertension is the result of his service-connected diabetes mellitus, type II and PTSD. Service treatment records show no complaints or findings of hypertension. The Veteran's service entrance and separation examinations show blood pressure readings of 120 over 70 and 124 over 80, with no cardiovascular or ocular abnormalities, defects, diagnoses or other findings noted. Thereafter, the earliest medical documentation of hypertension is a January 2004 private treatment entry. Although noted in the Veteran's history, hypertension was not diagnosed. A June 2004 VA examination for diabetes mellitus, type II reflects a diagnosis of hypertension. The examiner noted that the Veteran reported onset of hypertension in 1976. The examiner concluded that hypertension was not caused by diabetes mellitus, type II. A January 2005 private treatment entry notes a clinical assessment of stable hypertension. VA treatment records dated from April 2007 to April 2008 show treatment for hypertension. A December 2006 VA examination shows a diagnosis of hypertension. The examiner noted that there was no evidence of heart disease and opined that the hypertension was not caused by diabetes mellitus, type II. In an addendum dated in January 2007, the examiner stated that hypertension is not caused by diabetes except in the present of "significant" renal disease, which the Veteran did not have, as only mild nephropathy was shown. The examiner further stated that the Veteran's nephropathy "could certainly be aggravated by his diabetes, as could his hypertension be aggravated by his diabetes. However it is not possible to state whether this is beyond the normal progression of hypertension or not, without resorting to unfounded speculation." In an addendum dated in February 2007, the examiner opined that the Veteran's hypertension was not due to his PTSD and there was no evidence to support a finding that the Veteran's blood pressure was aggravated by his PTSD. The evidence of record contains no other medical findings or opinions establishing that the Veteran's diagnosed hypertension and elevated eye pressure, to include glaucoma, are the result of his military service or caused by or aggravated by his service-connected PTSD and diabetes mellitus, type II. The Veteran submitted private treatment records at his hearing before the Board in November 2009 with waiver of RO jurisdiction. 38 C.F.R. § 20.1304 (2009). These records, dated from May 2003 through August 2009, consist of a log of activities/observations and findings including sugar levels elevated to over 400 and 300 in 2003, reported hot flashes and feeling tingly in 2003 and 2004, and situations that would be stressful such as travelling to visit ill family members, the near death of a brother-in-law, and pain. The Veteran and D.B. testified before the Board that this log was kept to track the relationship between his stress, blood sugars, hypertension, and PTSD. However, while these entries show instances of activities where stress may be anticipated, elevated blood sugars, and episodes of pain and hot flashes, these private treatment records contain no opinions or findings by the physician stating that such events showing a relationship between hypertension, and the Veteran's military service or his service-connected PTSD and diabetes mellitus, type II. The Veteran and D.B. further testified at his hearing before the Board that his treating physician had opined that a relationship existed between the Veteran's service-connected PTSD and diabetes mellitus, type II, and his hypertension. However, the connection between what a physician said and the layman's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Veteran testified that his hypertension was the result of salt tablets he took during active service, or in the alternative, he testified that his hypertension is due to his service-connected diabetes mellitus, type II and PTSD. However, as a layperson, lacking in medical training and expertise, the Veteran's statements are not competent evidence to establish a relationship between his hypertension and his service-connected PTSD and diabetes mellitus, type II, or between his hypertension and his active service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The VA examiners considered the Veteran's contentions, as well as the clinical findings but found no relationship between his hypertension and his service-connected diabetes mellitus, type II or PTSD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). It is noted that the earliest medical evidence of record showing a diagnosis of hypertension is dated in 2004. Even assuming, without finding, that the Veteran's report to the VA examiner in 2004 of onset of hypertension in 1976 is accurate, this is still beyond the one-year presumptive period following his discharge from active service in 1968. See 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309; see also See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional). As there is no medical evidence to establish the diagnosed hypertension is related to the Veteran's military service, was manifested to a compensable degree within one year subsequent to service discharge, or was caused or aggravated by his service-connected PTSD and diabetes mellitus, type II, the preponderance of the evidence is against the claim for entitlement to service connection for hypertension. Therefore, the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for hypertension is not warranted. Elevated Eye Pressure The Veteran contends that his elevated eye pressure, to include glaucoma, is secondary to his service-connected diabetes mellitus, type II. The Veteran's service treatment records show no complaints or findings of an eye disorder. His service entrance and separation examinations show visual acuity at 20/20 near and distant vision, with no ocular abnormalities, defects, diagnoses, or other findings noted. A June 2004 VA examination for eyes shows a diagnosis of suspected glaucoma, but the examiner opined the condition was not related to his service-connected diabetes mellitus, type II. The examiner further opined that there was no diabetic caused ocular disability found. A VA examination for eyes was also conducted in December 2006, and chronic open angle glaucoma was diagnosed. The examiner opined that this disorder was not related to diabetes mellitus, type II, and further opined that there was no diabetic caused ocular disability found. Private medical treatment records dated in 2006 show a prescription of Travitan. Visual field of vision graphs showed findings of borderline results, but no interpretation or explanation of these findings was provided. A VA examination for eyes was conducted in May 2007. The examiner reviewed the Veteran's medical history, noting the initial diagnosis of diabetes mellitus, type II 9 years prior, requiring treatment with oral medication and insulin. It was reported that glaucoma was diagnosed in 2006; further noting that the Veteran's private treating physician prescribed two anti-glaucoma medications, which were discontinued after his eye pressure measurements reached 16, about two weeks prior to the present VA examination. On examination, eye pressure measured 28 on the right and 29 on the left. The VA examiner noted that private physician indicated that the Veteran's pressures measured 32. The VA examiner observed confrontation fields to be full to finger count and that a visual field test was graded as normal. Motility was full and exophoria measured 4-6 diopters with no vertical deviation. On dilation, the VA examiner reported objective observations of clear lenses and vitreous with normal posterior pole. No background diabetic retinopathy was detected and peripheral retina was found to be normal. The diagnoses were diabetes mellitus, type II without ophthalmic sign; ocular hypertension "meaning elevated eye pressure without evidence of visual field defect and/or progressive optic nerve damage;" and steroid responder with elevated eye pressure. The examiner further concluded that the there was no diabetic-caused visual impairment or disability. VA treatment records dated from April 2007 to April 2008 show treatment for glaucoma and ocular hypertension. The record contains no other medical findings or opinions establishing that the Veteran's diagnosed elevated eye pressure, to include glaucoma, is the result of his military service, or is caused or aggravated by his service-connected diabetes mellitus, type II. The Veteran testified before the Board that his treating physician opined that a relationship existed between his diabetes mellitus, type II, and elevated eye pressure, to include glaucoma. However, as noted above, the connection between what a physician said and the layman's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute "medical" evidence. Robinette, 8 Vet. App. at 77. Moreover, the Veteran's statements that his elevated eye pressure, to include glaucoma, is related to his service-connected diabetes mellitus, type II, can not be considered competent evidence. Espiritu, 2 Vet. App. at 495; Grottveit, 5 Vet. App. at 93. The VA examiners considered the Veteran's history and contention, as well as the clinical findings and found no relationship between his elevated eye pressure, to include glaucoma, and his service-connected diabetes mellitus, type II. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As there is no medical evidence to establish the diagnosed elevated eye pressure, to include glaucoma, is related to the Veteran's military service or caused or aggravated by the Veteran's diabetes mellitus, type II, the preponderance of the evidence is against the claim of entitlement for service connection for elevated eye pressure, to include glaucoma. Therefore, the doctrine of reasonable doubt is not for application. Gilbert, 1 Vet. App. at 54. Accordingly, service connection for elevated eye pressure, to include glaucoma, is not warranted. ORDER The appeal as to the issue of entitlement to service connection for high cholesterol is dismissed. The appeal as to the issue of entitlement to service connection for asbestosis is dismissed. Service connection for hypertension is denied. Service connection for elevated eye pressure, to include glaucoma, is denied. REMAND The Veteran also seeks a higher initial evaluation for his service-connected PTSD and diabetes mellitus, type II. The Veteran reported in August 2009 that he had he had received treatment for PTSD and diabetes mellitus, type II at the VA Winston-Salem Outpatient Center. Additionally, the Veteran testified at his hearing before the Board that he received treatment at the Winston-Salem VA Outpatient Center every 6 months and his next appointment for evaluation of his service-connected diabetes mellitus, type II was in January 2010. The Veteran testified before the Board that his service-connected PTSD and diabetes mellitus, type II, had increased in severity since his last examination in December 2006. The "fulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination . . . so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, the Board concludes that additional VA examinations would provide a record upon which a fair, equitable, and procedurally correct decision on these claims can be made. 38 C.F.R. §§ 3.326, 3.327 (2009). The issue of TDIU is inextricably intertwined with the issues of the initial evaluations to be assigned the Veteran's service-connected PTSD and diabetes mellitus, type II. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is remanded for the following actions: 1. The RO must obtain any additional VA and non-VA treatment records identified by the Veteran. In particular, the RO must ask the Veteran to identify treatment dates and provide release of private treatment record concerning treatment he has received from H. E. Branham, Jr., M.D., as well as the Winston-Salem VA Outpatient Center. Any records obtained must be associated with the claims file. The RO must perform all follow up indicated and document negative responses. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing the evidence, as required by 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded a VA examination to determine the nature and extent of his service- connected PTSD. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must comment upon the presence or absence, and the frequency or severity of the following symptoms due to PTSD: depressed mood; anxiety; suspiciousness; panic attacks; sleep impairment; memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation or mood; suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; impairment in thought processes or communication; delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; and disorientation to time or place. The examiner must also enter a complete multiaxial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. The report prepared must be typed. 3. The Veteran must be afforded a VA examination to determine the nature and extent of his service-connected diabetes mellitus, type II. All indicated tests and studies must be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. The examiner must specifically determine whether treatment of Veteran's diabetes mellitus requires insulin, a restricted diet, and/or regulation of activities; causes episodes of either ketoacidosis or hypoglycemic reactions that require one or two hospitalizations per year or twice a month visits to a diabetic care provider. Additionally, the examiner must address whether the Veteran has any other disabilities that are the result of his diabetes mellitus. The report prepared must be typed. 4. The Veteran must be afforded an examination to determine the effects of his service-connected disabilities on his ability to obtain or maintain employment consistent with his education and occupational experience. The claims folder must be reviewed by the examiner in conjunction with the examination. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran a full work and educational history. Based on a review of the claims file, the examination findings, the Veteran's statements as to the functional effects of his service-connected disabilities, and the Veteran's education and occupational experience, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience, without any consideration to his age or to any impairment caused by nonservice-connected disabilities. A complete rationale for the opinion must be provided. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. The report must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.158, 3.655. In the event that the Veteran does not report for the scheduled examinations, documentation must be obtained which shows that notice scheduling the examinations was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After undertaking any other development deemed essential in addition to that specified above, the RO must readjudicate the Veteran's claims for a higher initial evaluation for PTSD and diabetes mellitus, type II, and for the claim of TDIU. If the issues on appeal remain denied, a supplemental statement of the case must be provided to the Veteran and he must be provided an opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs