Citation Nr: 1127182 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 09-15 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for partial phalangectomy of the right great toe as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for peripheral vascular disease (claimed as circulatory condition) as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The Veteran had active service from February 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the above claims. The issues of entitlement to service connection for a kidney disorder and a total disability rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. In February 2011, a hearing was held before the undersigned Veterans Law Judge making this decision. See 38 U.S.C.A. § 7107(c) (West 2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's partial phalangectomy of the right great toe is casually related to his service-connected diabetes mellitus, type II. 2. The Veteran's peripheral vascular disease is causally related to his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The Veteran's partial phalangectomy of the right great toe is secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). 2. The Veteran's peripheral vascular disease is secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Since the Board has decided to grant the claims on appeal, any failure to notify and/or assist the Veteran at to these claims pursuant to the VCAA cannot be considered prejudicial to the Veteran. Entitlement to Service Connection for Partial Phalangectomy of the Right Great Toe and Peripheral Vascular Disease as Secondary to Service-Connected Diabetes Mellitus, Type II "[I]n order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). If there is no evidence of a chronic condition during service, or an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). Additionally, service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service-connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. Additionally, the Board notes that 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. The Veteran contends that service connection is warranted for partial phalangectomy of the right great toe and peripheral vascular disease as secondary to his service-connected diabetes mellitus. Private medical records from November and December 2006 reflect that the Veteran's blood sugar was noted to be increased in November 2006 and that it continued to be elevated in December 2006. The clinical impression included evidence of type 2 diabetes mellitus. Following a VA examination in July 2008, although the RO concluded that a VA examiner determined that he was unable to attribute the Veteran's partial phalangectomy of the right great toe to the Veteran's service-connected diabetes because there were no medical records to review regarding the circumstances under which the Veteran underwent surgery, the Board's review of the report from this examination reveals that the VA examiner initially stated that he was "able to attribute the patient's amputation of the right second toe or partial phalangectomy of the right great toe as being secondary to diabetes." The examiner stated that he was unable to attribute the Veteran's peripheral vascular disease to the Veteran's diabetes without resorting to speculation. While service treatment records do not reflect any complaints or treatment associated with the right great toe or peripheral vascular disease, and there is medical evidence indicating that the Veteran had problems with his right great toe and peripheral vascular system prior to the diagnosis of diabetes mellitus in December 2006, one of the Veteran's regular private treating physicians, Dr. Thomas Austin, initially opined in September 2008 that the Veteran's partial amputation on the right foot was at least as likely as not secondary to or aggravated by the Veteran's service-connected diabetes, and that the Veteran's peripheral vascular disease was also aggravated by his diabetes. In addition, while the RO correctly noted that this opinion was not supported by an expressed rationale, Dr. Austin subsequently noted in March 2011 that the Veteran's diabetes had probably contributed to his peripheral vascular disease and fatigue, in addition to the Veteran's right [great] toe, in essence concluding, as did Dr. Lawrence Dewberry in March 2011 with respect to the Veteran's chronic kidney disease, that the etiology of the Veteran's partial amputation of the right great toe and peripheral vascular disease was multifactorial. Although the issue of entitlement to service connection for kidney disease as secondary to service-connected diabetes is not currently before the Board, the Board finds it relevant that Dr. Dewberry concluded that the Veteran's kidney disorder was related to the Veteran's diabetes despite acknowledging that the Veteran additionally suffered from scleroderma. In a medical statement, dated in August 2008, another of the Veteran's private physicians, Dr. Thompson, also opined that the Veteran's diabetes could have contributed to his problems with the right great toe and been the direct cause of the amputation of the second toe and the first metatarsal phalangeal (MTP) joint resection. The Veteran also testified before the Board in February 2011 that he had been told by Dr. Austin that symptoms associated with diabetes may go undiagnosed as much as 10 years prior to a formal diagnosis (transcript (T.) at p. 14), and in this regard, private treatment records in May 1995 already revealed the presence of renal insufficiency that was not attributed solely to his scleroderma and there were glucose readings that were considered high at 137 and 151. In addition, over the period of May to November 1995, while there were normal glucose readings in June, July, September, and November 1995, there were also unusually high levels noted at the end of May 1995 (142) and in August 1995 (145). An April 2009 VA examiner reviewed the Veteran's service, private, and VA treatment records and concluded that the Veteran's right great toe MTP amputation was not caused by his diabetes because it preceded the formal diagnosis of diabetes in December 2006 by 18 months (August 2005). Instead, the April 2009 examiner believed that the causes of the Veteran's partial right great toe amputation were scleroderma and peripheral vascular disease, which had been present for many years. In reviewing the evidence of record, the Board initially finds that there are numerous diagnoses of the partial amputation of the right great toe and peripheral vascular disease. Therefore, the threshold requirement of a current disability has clearly been met with respect to each of the Veteran's claims. In addition, although the Board recognizes that the April 2009 VA examiner determined that the Veteran's diabetes could not have caused or aggravated the Veteran's right great toe or peripheral vascular disease, the opinion was solely predicated on the fact that the formal diagnosis of diabetes occurred 18 months after the Veteran's right great toe surgery and that the Veteran's peripheral vascular disease had been present for many years. However, a careful review of the record in this case reveals that the diagnosis in December 2006 on which the VA examiner places such emphasis was based on increased glucose readings over the course of the previous two months, and in 1995, there were high readings obtained over a 4-month period. Thus, the basis for the VA April 2009 opinion is not found to be particularly persuasive. In addition, the record also reflects the existence of the opinions of two private physicians who have concluded that the Veteran's service-connected diabetes has caused and/or aggravated his partial amputation of the right great toe and peripheral vascular disease. Moreover, although it is not specifically stated, based on the additional March 2011 opinions of Dr. Austin and Dr. Dewberry, it is apparent that these opinions are based on the fact that the etiology of many of the Veteran's current disabilities are multifactorial and it is therefore just as likely as not that the Veteran's diabetes caused and/or aggravated his right great toe and peripheral vascular disease. Accordingly, giving the benefit of the doubt, with two opinions essentially in favor of the claims and one against, the Board finds that service connection is warranted for partial phalangectomy of the right great toe and peripheral vascular disease as secondary to the Veteran's service-connected diabetes mellitus, type II. ORDER Entitlement to service connection for partial phalangectomy of the right great toe is granted. Entitlement to service connection for peripheral vascular disease is granted. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs