Citation Nr: 1108257 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 08-33 708 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for nephropathy, claimed as secondary to service-connected disability. 2. Entitlement to service connection for bilateral lower extremity venous insufficiency with stasis, claimed as peripheral vascular disease secondary to service-connected disability. 3. Entitlement to a compensable rating for the service-connected second degree burn scar residuals of the service-connected right upper and lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from June 1971 to April 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2007 rating decision by the RO. In June 2010, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge; a transcript of this hearing is associated with the claims file. The issues of service connection for venous insufficiency and a compensable rating for the service-connected second degree burn scar residuals of the right upper and lower extremities are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran currently is shown as likely as not to suffer from nephropathy that was aggravated by the service-connected diabetes mellitus, type 2. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by nephropathy is proximately due to or the result of the service-connected diabetes mellitus, type 2. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and Assist The Veterans Claims Assistance Act of 2000 (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 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Legal Criteria and Analysis Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of the Veteran's service connection claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that his kidney disorder is due to the service-connected diabetes mellitus. Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability which is service-connected; and (3) competent evidence of a nexus between the two. In connection with a June 2005 QTC examination, the examiner diagnosed the Veteran as having diabetic nephropathy. At a November 2006 VA examination, the examiner diagnosed early nephropathy with proteinuria and residuals. At the April 2009 VA examination, the examiner noted no evidence of renal insufficiency. The Veteran was noted to have had kidney stones in the past, but denied having any further problems since. The June 2005 examiner provided an opinion that the kidney disorder was a complication of and was aggravated by the service-connected diabetes mellitus. His rationale was that the diabetes accelerated glomerulosclerosis and renal dysfunction such as glycosuria, which was seen in the Veteran. The November 2006 VA examiner was also asked to opine as to the etiology of the claimed kidney disorder, but indicated that to do so would require resorting to speculation. Based on a careful review of the record, the Board finds the evidence to be in relative equipoise in showing that the Veteran is experiencing findings of nephropathy that as likely as not is aggravated by the service-connected diabetes mellitus. In resolving all reasonable doubt in the Veteran's favor, service connection for diabetic nephropathy is warranted. ORDER Secondary service connection for diabetic nephropathy is granted. REMAND There is conflicting evidence as to the nature of the Veteran's claimed vascular disorder. In June 2005, the QTC examiner diagnosed the Veteran with peripheral vascular disease. In November 2006, the VA examiner determined that the Veteran did not have peripheral vascular disease, but instead diagnosed venous insufficiency. In April 2009, the VA examiner found no vascular insufficiency. Under the circumstances, the Board finds that another examination is needed to determine the nature and likely etiology of the claimed condition. During the June 2010 hearing, the Veteran testified that additional VA treatment records in the past year are pertinent to his claims. The records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the VA treatment records must be secured. Accordingly, these remaining matters are REMANDED to the RO for the following action: 1. The RO should take appropriate steps to obtain copies of any outstanding treatment records referable to the claimed vascular disorder and the service-connected second degree burn scar residuals of the right upper and lower extremities from the Pensacola VA Medical Center since August 2009. All records obtained must be associated with the claims file. The Veteran should be informed that he may submit additional evidence or medical records in support of these remaining claims. 2. The RO then should schedule the Veteran for a VA examination to determine the nature and likely etiology of his claimed vascular disorder. The Veteran's claims file must be reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. The examiner should elicit from the Veteran and record a complete history referable to the claimed condition. Based on a review of the case and examination of the Veteran, the examiner should offer an opinion as whether the Veteran has a current peripheral vascular disability that at least as likely as not (50 percent or greater probability) is caused or aggravated by the service-connected diabetes mellitus. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. If an opinion cannot be made without resort to speculation, the examiner must state so and clearly indicate whether this conclusion was based on full consideration of all the assembled data and evidence, and explain the basis for why an opinion would be speculative. 3. The Veteran should be advised of the provisions of 38 C.F.R. § 3.655 and if the Veteran fails, without good cause, to report to the scheduled examinations, the RO should apply these provisions as appropriate. 4. Following completion of all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2010). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs