Citation Nr: 1030744 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 06-16 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an evaluation higher than 30 percent for coronary artery disease, status-post coronary artery bypass grafting for the portion of the appeal period from May 12, 2004, and higher than 10 percent for the portion of the appeal period prior to May 12, 2004. 2. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus type II. 3. Entitlement to an evaluation higher than 20 percent for service-connected diabetes mellitus type II with peripheral neuropathy of the lower extremities, hypertension, and erectile dysfunction. 4. Entitlement to an initial compensable evaluation for service- connected hypertension. 5. Entitlement to service-connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, major depressive disorder, and a dysthymic disorder. 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from November 1969 to November 1972. This matter arises before the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, and May 2005 and July 2007 rating decisions of the VA RO in Louisville, Kentucky. The VA RO in Louisville, Kentucky, now has jurisdiction over all of the Veteran's claims. The RO most recently denied the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in a November 2000 rating decision, which was confirmed by a September 2001 statement of the case. The Veteran was notified of that determination but failed to appeal the decision to the Board. However, effective July 13, 2010, VA amended provisions of 38 C.F.R. § 3.304(f), pertaining to direct service connection for PTSD. 75 Fed. Reg. 39843 (July 13, 2010). Under the new regulation, a Veteran's lay testimony alone, indicating that his claimed in-service stressor is related to his fear of hostile military or terrorist activity and is consistent with the places, types, and circumstances of his service, may establish the occurrence of the claimed in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2010)). Under appropriate circumstances, an intervening change in applicable law may entitle a claimant to receive consideration of a claim de novo, or as a "new" claim, even though the claim is based on essentially the same facts as those in a previously adjudicated claim. Routen v. West, 142 F.3d 1434, 1441-42 (Fed. Cir. 1998); Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir. 1994), aff'g 4 Vet. App. 283, 288-89 (1993). Promulgation of the VA regulation regarding service connection for PTSD following the prior RO decision provides a "new basis of entitlement or benefit" to which de novo adjudication is not precluded. Id. The Veteran's claim of entitlement to service connection for PTSD is encompassed by this new basis of entitlement. Thus, the Board will consider the Veteran's claim as a new claim, rather than as an attempt to reopen a previously denied claim. Also regarding the Veteran's PTSD claim, the Board notes that the Veteran's claim on appeal was previously characterized as a claim of service connection for PTSD. However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. A review of the claims file shows that the Veteran has been variously diagnosed as having PTSD, major depressive disorder, and a dysthymic disorder. The Board therefore finds that the Veteran's claim is not limited solely to PTSD. Instead, the claim is properly characterized broadly as a claim of service connection for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and a dysthymic disorder. The issue of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to higher evaluations for service- connected coronary artery disease and hypertension, entitlement to service connection for an acquired psychiatric disorder, and entitlement to TDIU 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 competent evidence of record shows that the Veteran's service-connected diabetes mellitus requires insulin, an oral hypoglycemic agent, and a restricted diet. 2. The competent evidence of record shows that the Veteran is not currently diagnosed with peripheral neuropathy of the upper extremities. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 20 percent for service-connected diabetes mellitus have not been met or approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2009). 2. Peripheral neuropathy of the upper extremities was not caused by or aggravated by the Veteran's service-connected diabetes mellitus, nor was it otherwise incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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, and (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In December 2003 and May 2007 correspondence, the RO advised the Veteran of what the evidence must show to establish entitlement to service connection on a direct and secondary basis and for an increased rating for his claimed disorders and described the types of evidence that the Veteran should submit in support of his claims. The RO also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The May 2007 VCAA notice letter also described the elements of degree of disability and effective date. Furthermore, the Veteran was provided with a copy of the March 2004 and July 2007 rating decisions, the April 2006 and October 2007 statements of the case, and the July 2007 supplemental statement of the case, which cumulatively included VA's rating criteria, his appellate rights, a summary of relevant evidence, citations to applicable law, and a discussion of the reasons for the decision made by the AOJ. Therefore, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. To fulfill its statutory duty to assist, the RO afforded the Veteran with compensation and pension examinations in January 2004 and April 2007 and obtained a medical opinion in June 2007 for his service-connected diabetes mellitus and claimed peripheral neuropathy, obtained the Veteran's VA and private medical records, and associated his service treatment records (STRs) with the claims file. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case were more than adequate, as they were predicated on a full reading of the private and VA medical records in the Veteran's claims file. The examinations also included the Veteran's subjective complaints about his disabilities and the objective findings needed to rate the disabilities. The Veteran has not made the RO or the Board aware of any other evidence relevant to this appeal that he or the VA needs to obtain. Based on the foregoing, 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 the claims. Accordingly, the Board will proceed with appellate review. Diabetes Mellitus The Veteran claims that he is entitled to a higher disability rating for his service-connected diabetes mellitus. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2009). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is currently in receipt of a 20 percent disability rating for his service-connected diabetes mellitus under Diagnostic Code 7913. Pursuant to that diagnostic code, a rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent disability rating is warranted when the condition requires insulin, a restricted diet, and regulation of activities, and a 60 percent disability rating is warranted when the condition requires insulin, a 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. Finally, a 100 percent disability rating is appropriate when the condition requires more than one daily injection of insulin, restricted diet, and regulation of activities (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. Thus, in order for the Veteran to receive a higher disability rating for his service-connected diabetes mellitus under Diagnostic Code 7913, the evidence of record must show insulin dependence, a restricted diet, and regulation of activities. "Regulation of activities" is defined as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). The Veteran's increased rating claim must be denied because there is no medical evidence showing that the Veteran's service- connected diabetes mellitus requires regulation of activities as that term is defined in the applicable regulation. The VA treatment records throughout the appeal period show that the Veteran takes insulin and other oral medications and restricts his diet due to his diabetes. For example, a May 2007 treatment record indicates that the Veteran uses insulin, which was increased to 70/30 as early as November 2004. Also, a February 2007 treatment record revealed that the Veteran's diabetes was out of control and that he was following a low fat diabetic diet. However, there is no indication in the VA treatment records that the Veteran was required to restrict his occupational and recreational activities. Moreover, the January 2004 compensation and pension examiner noted that the Veteran was treated for the first two years with oral hypoglycemic drugs alone but, in the following seven years between that time and the examination, he had been treated by a combination of pills and insulin. He had no episodes of ketoacidosis, was on a restricted diet, and needed to lose weight. At this time, the only restriction on his activities was that he tired easily. The Veteran underwent a second compensation and pension examination in April 2007. At this time, the Veteran was insulin dependent and his disorder was under poor control. His treatment also included Metformin, and the examiner noted that the Veteran was using various oral diabetic medications in the past. The Veteran told the examiner that he was unemployed due to a low back injury, and the examiner noted that the Veteran's uncontrolled diabetes caused fatigue. The examiner did not indicate that the Veteran had to avoid strenuous occupational and recreational activities. Finally, in June 2007, the Veteran's physician at the Lexington, Kentucky, VA Medical Center submitted a statement in which he described the Veteran's diabetes as requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet instead of noting that it required insulin, a restricted diet, and regulation of activities. Therefore, the Board finds that there is no medical evidence that a doctor advised the Veteran to restrict his activities. Without such a showing, the Veteran's claim of entitlement to a higher evaluation for his service-connected diabetes mellitus must be denied. That is, the symptomatology of the Veteran's service- connected diabetes mellitus most closely approximates the criteria for a 20 percent disability rating. To the extent that the Veteran's diabetes mellitus may affect his employment, such has been contemplated in the currently assigned schedular evaluations. The evidence does not reflect that the disability at issue caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular schedular standards are rendered impracticable. There is also no unusual or exceptional disability picture. Thus, referral to the RO for consideration of the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321 (2009) is not warranted. Peripheral Neuropathy of the Bilateral Upper Extremities The Veteran filed a claim for peripheral neuropathy of the bilateral upper extremities, to include as secondary to his service-connected diabetes mellitus, in May 2007. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310 (2009). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Service connection may also be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of a disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). In his June 2010 brief, the Veteran claimed that he believed his peripheral neuropathy of the upper extremities was secondary to his service-connected diabetes mellitus. The first element required to establish entitlement to service connection is the existence of a current disability. However, the evidence of record demonstrates that the Veteran is not currently diagnosed with peripheral neuropathy of the upper extremities, and, therefore, his claim must be denied. The record contains both the Veteran's relevant treatment records and compensation and pension examination reports in connection with his claim. The Board observes that his treatment records are silent regarding any peripheral neuropathy of the upper extremities. Furthermore, the aforementioned compensation and pension examinations, as well as a December 2004 Agent Orange examination, note diabetic neuropathy but make no mention of any neuropathic symptoms in the Veteran's upper extremities. In fact, the Veteran only seemed to complain about a burning sensation in his feet and was not receiving any treatment for peripheral neuropathy at the time of his April 2007 compensation and pension examination. Finally, in a June 2007 statement, the Veteran's doctor noted that the only complications related to the Veteran's diabetes were cardiovascular and neurological, specifically pointing to peripheral neuropathy of the feet and coronary artery disease. Accordingly, service connection for peripheral neuropathy of the upper extremities, to include as secondary to service-connected diabetes mellitus is not warranted, and the Veteran's appeal is denied. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER 1. Entitlement to an evaluation higher than 20 percent for service-connected diabetes mellitus type II with peripheral neuropathy of the lower extremities, hypertension, and erectile dysfunction is denied. 2. Entitlement to service connection for diabetic peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus type II, is denied. REMAND After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claims entitlement to higher evaluations for service-connected coronary artery disease and hypertension, entitlement to service connection for PTSD, and entitlement to TDIU. The latest compensation and pension examination of record for the Veteran's coronary artery disease and hypertension occurred over three years ago in April 2007. Since then, the Veteran has argued that the evidence in regard to his coronary artery disease is both stale and without METS scores. He also referred to his hypertension examination as stale, adding that it is "certainly plausible the condition may have worsened." Given the passage of time since his most recent examination and his claims that the evidence is old, the Board finds that a new compensation and pension examination would assist the Board in clarifying the extent of the Veteran's hypertension and coronary artery disease and would be instructive with regard to the appropriate disposition of the issues under appellate review. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Thus, this matter must be remanded for a compensation and pension examination in order to ascertain the current severity of the Veteran's coronary artery disease and hypertension. Additionally, VA must provide a compensation and pension examination to a Veteran when the information and evidence of record (1) contains competent lay or medical evidence of a current diagnosed disability; (2) establishes that the Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease listed in 38 C.F.R §§ 3.309, 3.313, 3.316, and 3.317 manifesting during the applicable presumptive period if the Veteran has the required service to trigger the presumption; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i) (2009). The Veteran has presented evidence that he is diagnosed with PTSD and major depressive disorder. Since the pertinent regulations were amended, as described in the introduction, the Veteran's in-service stressor is conceded. Therefore, upon remand, he should be afforded a compensation and pension examination to determine the etiology of his acquired psychiatric disorder. As to the claim of entitlement to TDIU, the Board finds that this claim is inextricably intertwined with the above claims. Therefore, adjudication of this claim must be deferred pending completion of the additional evidentiary development outlined above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). While this claim is in Remand status, the AMC should obtain the Veteran's recent VA treatment records to ensure the evidence is current. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA Medical Center in Lexington, Kentucky, dated from May 2007 to the present. 2. After obtaining the Veteran's VA treatment records, schedule him for an appropriate medical examination to determine the nature and extent of the current manifestations of his service- connected coronary artery disease and hypertension. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination. The examiner should indicate in the report that the claims file was reviewed. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service- connected coronary artery disease and hypertension and any other nonservice- connected disorders that may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. Schedule the Veteran for an appropriate examination to determine the etiology of his currently diagnosed psychiatric disorders. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. The examiner should indicate in the report that the claims file was reviewed. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. The examiner should specifically state what psychiatric disorders the Veteran is diagnosed with and whether any acquired psychiatric disorder the Veteran is diagnosed with is at least as likely as not (i.e., probability of 50 percent) etiologically related to the Veteran's period of active military service. If the examiner is unable to give such an opinion without resorting to mere speculation, the examiner should state so and give the reasons why he or she cannot give such an opinion. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 4. After any additional development deemed necessary is accomplished, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant 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). (CONTINUED ON NEXT PAGE) These claims 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. 2009). ______________________________________________ ROBERT E. SULLIVAN. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs