Citation Nr: 1200528 Decision Date: 01/06/12 Archive Date: 01/13/12 DOCKET NO. 04-27 420 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for degenerative joint disease and arthritis claimed as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) claimed as secondary to service-connected diabetes mellitus type II. 3. Entitlement to service connection for rash on the hands and feet claimed as secondary to service-connected diabetes mellitus type II. 4. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome (IBS) (claimed as diverticulitis of the colon), prior to August 20, 2008, and in excess of 30 percent, from August 20, 2008. 5. Entitlement to a rating in excess of 40 percent for diabetes mellitus type II, to include entitlement to compensable ratings for hypertension and for cataracts. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to October 1970. These matters came to the Board of Veterans' Appeals (Board) initially on appeal from a January 2004 rating decision in which the Nashville RO denied the Veteran's service-connection claims. The Veteran and his spouse presented testimony at the RO during a Board hearing in July 2005. A transcript of the hearing is associated with the claims file. In a December 2006 rating decision, service connection for IBS was granted and an initial 10 percent rating was assigned. In addition, a 40 percent rating for diabetes mellitus type II, including noncompensable complications of hypertension and cataracts, was assigned, effective March 23, 2005. In January 2007, the Veteran filed a notice of disagreement (NOD) regarding the disability ratings assigned for IBS and for diabetes mellitus, to include entitlement to compensable ratings for hypertension and vision (eye disability). As a statement of the case (SOC) has not been issued, according to the mandate in Manlincon v. West, 12 Vet. App. 238 (1999), a remand is required. [Parenthetically, the Board notes that in an April 2010 decision, a Decision Review Officer assigned a 30 percent rating for IBS, effective August 20, 2008. As a result, the issue of entitlement to a higher initial rating is as described on the title page.]. This case was remanded in July 2008 and November 2009 for further development. In the November 2009 decision, the Board denied service connection for vision problems including diabetic retinopathy claimed as secondary to service-connected diabetes mellitus type II and granted service connection for diabetic peripheral neuropathy of both lower extremities. Subsequently, an April 2011 rating decision issued in May 2011 implemented the award of service connection for diabetic peripheral neuropathy of both lower extremities and also granted service connection for tinnitus and for hearing loss. Thus, these issues are no longer in appellate status. In an August 2011 letter, the Veteran indicated that he wished to claim entitlement to service connection for ischemic heart disease. Additionally, it appears from an April 2011 rating decision that the RO was go develop a claim of entitlement to a total rating based on individual unemployability (TDIU). These matters 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. The issues of service connection for COPD and for a skin disorder and for increased ratings for IBS and for diabetes mellitus type II, to include entitlement to compensable ratings for complications of hypertension and cataracts, are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on his part, is required. FINDINGS OF FACT 1. During his active duty service, the Veteran served in the Republic of Vietnam during the Vietnam era and, thus, is presumed to have been exposed to herbicides. 2. The Veteran is service connected for diabetes mellitus due to presumed exposure to herbicides. 3. The Veteran's degenerative joint disease and arthritis were not manifested during the Veteran's active duty service or for many years thereafter, nor are they otherwise related to the Veteran's active service, including exposure to herbicides. 4. The Veteran's degenerative joint disease and arthritis have been aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The Veteran's degenerative joint disease and arthritis have been aggravated by a disability incurred during his active duty service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.105(a), 3.159, 3.303, 3.307, 3.309, 3.312, 3.326(a) (2011); 38 C.F.R. § 3.310 (effective prior to October 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection The Veteran is claiming entitlement to service connection for degenerative joint disease and arthritis. During the July 2005 Board hearing, he and his spouse specifically contended that a doctor told him that these disabilities are secondary to his service-connected diabetes mellitus. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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(d). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection is also warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. The U.S. Court of Appeals for Veterans Claims (Court) has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; Type II diabetes mellitus; Hodgkin's disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e); see also Diseases Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 53,202 (Aug. 31, 2010) (adding hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era between January 9, 1962 and May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has determined that a veteran must have set foot on the land mass of Vietnam, or, have been present in the inland waterways of that country during the statutory period (so-called 'brown water' naval activity) in order to be considered to have had service in the Republic of Vietnam and, in turn, presumed exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied 129 S. Ct. 1002 (2009). The Veteran's Form DD-214 reflects that he served in the Republic of Vietnam from April 30, 1970 to October 28, 1970 and, thus, he is presumed to have been exposed to herbicides. By a May 2003 rating decision issued in June 2003, the Veteran was granted service connection for diabetes mellitus type II associated with herbicide exposure, effective February 18, 2002. First, concerning service connection for degenerative joint disease and arthritis due to exposure to herbicides, it is not one of the diseases for which VA has determined that presumptive service connection based on exposure to herbicides used in Vietnam is warranted. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 53,202-53,216 (Aug. 31, 2010); see also 72 Fed. Reg. 32,345-32,407 (June 12, 2007); 61 Fed. Reg. 57,586-57,589 (Nov. 7, 1996); and 59 Fed. Reg. 341-46 (Jan. 4, 1994). Therefore, even if the Veteran was exposed to herbicides during his active duty, service connection may not be granted for degenerative joint disease and arthritis on the basis of the presumptive regulatory provisions discussed above. In the absence of a diagnosed disease for which the presumption applies, 38 C.F.R. §§ 3.307(a)(6)(iii) and 3.309(e) are not applicable, and the Veteran's claim of service connection for degenerative joint disease and arthritis can only be addressed on a direct or a secondary service-connection basis in this decision. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Additionally, the Board finds that there is no basis for awarding service connection for the Veteran's degenerative joint disease and arthritis on a direct basis. Service treatment records are silent with respect to any such problems. Moreover, the Veteran's October 1970 separation examination shows that his spine and other musculoskeletal system were evaluated as clinically normal. This is of high significance as it demonstrates that trained medical personnel were of the opinion that no musculoskeletal/joint problems were present at that time. In May 1990, the Veteran was treated by VA for complaints of right shoulder pain, which improved with heat. The first diagnosis of degenerative joint disease was on a September 2002 private x-ray of the cervical spine. On July 2003 private x-rays of the cervical and thoracic spine, mild-to-moderate mid-cervical spondylosis and degenerative change at C4-C5 and mild upper and mid-thoracic spondylosis were shown. During a September 2006 VA orthopedic examination, the Veteran reported a history of the onset of pain in his spine beginning about 10 years ago. Subsequently, the pain spread up to his neck and head and down his legs to his toes. His spinal region remained the primary site of pain and stiffness, although he reported slower developing problems in his hands, knees, elbows, shoulders, ankles and feet. X-rays revealed degenerative disc changes at C5-C6 with the presence of small anterior osteophytes and mild degenerative changes of L2-L3 and at L4-L5 consisting largely of minimal narrowing of disc spaces and small marginal osteophytes. Degenerative spur changes were noted in the cervical and lumbar spine on x-rays of the thoracic spine. Left knee x-rays were normal. March 2007 VA x-rays of the knees revealed very early osteoarthritis and minor degenerative osteophytes. An April 2008 VA x-ray of the left shoulder showed hypertropic bone formation about the acromioclavicular (AC) joint. A July 2008 VA computed tomography (CT) scan of the cervical spine revealed mild osteophytes to all disc levels from C3 through C7 and spondylosis with foraminal stenosis at the exit of the right C7 nerve root, while a contemporaneous CT scan of the lumbar spine showed mild degenerative disc disease and osteoarthritis of the L5-S1 facet. Thus, degenerative joint disease and/or arthritis was not shown until more than 20 years following discharge from service, so there is no supporting evidence of a continuity of pertinent symptomatology. Here, the Veteran is competent to say that he experienced subjective symptoms of joint pain. The Veteran has not demonstrated that he has the expertise required to diagnose a musculoskeletal disability or provide an etiological opinion. The fact remains that there is no indication that degenerative joint disease and/or arthritis was present in service, within one year after service discharge, or that any diagnosed musculoskeletal disability is linked to service on a direct basis. Even the Veteran reported during a September 2006 VA orthopedic examination that the onset of pain in his spine began in the late 1990s. Thus, there is an absence of any lay or medical evidence to support the claim on a direct basis. In this regard, the Veteran was afforded a VA examination in March 2010. The March 2010 VA examiner indicated that the Veteran has a history of arthritis diagnosed through history, physical, and clinical and radiological findings, showing arthritis of the knees, spine, neck, shoulder, and fingers that is degenerative in nature. Based on the history, physical and the radiographic history, the VA examiner indicated that it cannot be determined whether or not service or Agent Orange was a contributor. The Veteran did a lot of jumping off of tractors during service but this is only about a 2-year stint and would likely not be the source of the arthritis of a polyarthritic nature. However, it is at least as likely as not that any degenerative joint disease or arthritis was caused by the service due in part to Agent Orange exposure. This is something that just cannot be resolved based on the available information. Any further conclusion would be medical speculation. Accordingly, the Board finds that the weight of the evidence is against the presence of a disease or injury in service, and a causal nexus between current degenerative joint disease and arthritis to active service, including exposure to herbicides. However, with regard to whether there is a relationship between the Veteran's degenerative joint disease and arthritis and service-connected diabetes mellitus, the March 2010 VA examiner opined that it is not likely that they were caused by the Veteran's diabetes. But this VA examiner also opined that it is more likely than not that the Veteran's degenerative joint disease and arthritis was aggravated by his service-connected diabetes. In support, this examiner noted that the Veteran's diabetes is quite profound and very advanced and has caused him multiple limitations. As a result, the Veteran is unable to perform regular exercise and activity and is not able to do those sorts of activities that would help maintain his arthritic condition in a better state. The Board considers the March 2010 VA examination report to be probative evidence, presenting competent medical conclusions and analysis informed by review of the claims file. There is no significantly persuasive medical evidence addressing the pertinent medical questions involved which meaningfully contradicts the information presented in the March 2010 VA examination report with regard to aggravation by a service-connected disability. Although the evidence in this case is not entirely clear, and thus does not clearly demonstrate entitlement to service connection for degenerative joint disease and arthritis, the Board finds that there has been adequate development of the evidence and that the evidence is in relative equipoise concerning service connection on a secondary basis due to aggravation. Resolving reasonable doubt in favor of the Veteran, the Board finds that the March 2010 VA examiner has indicated that the Veteran's degenerative joint disease and arthritis have been aggravated by the Veteran's service-connected diabetes. Therefore, the Board finds that service connection is warranted for the Veteran's degenerative joint disease and arthritis on a secondary basis due to aggravation by the Veteran's service-connected disability. In closing, there is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted with regard to service connection for degenerative joint disease and arthritis by the Board at this time. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes that letters dated in July 2006, August 2007, December 2009 and January 2010 VA informed the Veteran of the manner in which disability ratings and effective dates are assigned. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection. ORDER Service connection for degenerative joint disease and arthritis due to aggravation by a service-connected disability is warranted. The appeal is granted. REMAND As noted in the Introduction, a December 2006 rating decision granted service connection for IBS and increased the Veteran's disability rating to 40 percent for diabetes mellitus type II, including complications of hypertension and cataracts. In January 2007, the Veteran filed an NOD appealing the disability ratings assigned for both disabilities, to include separate compensable ratings for hypertension and for vision (cataracts). The Board finds that the Veteran's January 2007 statement is a timely NOD pursuant to 38 C.F.R. § 20.201 and the AMC/RO has not issued an SOC. The Court has held that, where the record contains an NOD as to an issue, but no SOC, the issue must be remanded for issuance of an SOC, and to provide the Veteran an opportunity to perfect an appeal. Manlincon, 12 Vet. App. at 240-41. The Board emphasizes, however, that to obtain appellate review of an issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2011). The current appeal also includes the issues of entitlement to service connection for COPD and for rash on the hands and feet claimed as secondary to the service-connected diabetes mellitus type II. In the November 2009 remand, the Board observed that a July 2003 VA examination did not result in a diagnosis of COPD, even though VA treatment records dated in 2007 and 2008 showed decreased breath sounds. As a result, a VA examination with opinion was necessary. Similarly, the Board found that a VA examination was warranted for the purpose of determining the etiology of the Veteran's rashes on his hands and feet, to consider whether they were caused or aggravated by service, to include as due to Agent Orange exposure or as secondary to service-connected diabetes mellitus. In providing such opinion, the examiner was to include a discussion of any contrary opinions. The Veteran was afforded VA respiratory and skin examinations on March 15, 2010. However, in both opinions, the examiner failed to address the issues of whether the Veteran's COPD and/or rash on the hands and feet were caused by service and whether the Veteran's diabetes mellitus aggravated either of these two disabilities. See Allen, 7 Vet. App. at 448. Moreover, the examiner did not comment on the contrary opinions of record with regard to the Veteran's claimed skin disability given by Dr. M.E.P. in July 2003 and by an August 2004 VA examiner. Although perhaps intended to be implied in the March 2010 opinions, aggravation was not specifically addressed. Thus, the Board must find the March 2010 examination is inadequate for appellate review. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Therefore, the claims file must be returned in order to obtain sufficient opinions in compliance with the Board's November 2009 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board will remand both issues in order to obtain medical opinions with regard to service connection on a direct basis and on a secondary basis due to aggravation from the March 2010 examiner or, if unavailable, to afford the Veteran a new VA examination to address direct and secondary service connection. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should furnish the Veteran and his representative with an SOC on the issues of entitlement to an initial rating in excess of 10 percent for IBS, prior to August 20, 2008, and in excess of 30 percent, from August 20, 2008, and to a rating in excess of 40 percent for diabetes mellitus, to include entitlement to compensable ratings for hypertension and for cataracts. The Veteran should be advised of the need to file a timely substantive appeal as to these issues if he wishes to complete an appeal as to these two additional issues. 2. After completion of 1 above, the claims file should be referred to the same examiner who conducted the March 2010 VA respiratory and skin examinations. The examiner should offer clear opinions as to: a) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's COPD and any rash on the hands and feet was/were manifested during or otherwise caused by active duty service or any incident therein, to include as due to Agent Orange exposure. b) Is it at least as likely as not (50% or higher degree of probability) that the Veteran's COPD and any rash on the hands and feet was caused by, or aggravated by, the service-connected diabetes mellitus type II. If the March 2010 VA examiner is not available, the Veteran should be afforded a new VA examination to ascertain the nature, etiology and severity of his COPD and any rash on the hands and feet. The claims file must be made available to the examiner for review. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service medical records; the medical history obtained from the Veteran; the clinical evaluation; any tests that are deemed necessary; and after examining the Veteran, the examiner should respond to the following: a) Is it at least as likely as not (a 50% or higher degree of probability) that that the Veteran's COPD and any rash on the hands and feet was/were manifested during or otherwise caused by active duty service or any incident therein, to include as due to Agent Orange exposure. b) Is it at least as likely as not (a 50% or higher degree of probability) that the Veteran's COPD and any rash on the hands and feet was caused by, or aggravated by, the Veteran's service-connected diabetes mellitus type II. All opinions expressed should be supported by a detailed rationale with discussion of the evidence and other medical opinions of record, in particular those given by Dr. M.E.P. in July 2003 and by an August 2004 VA examiner. 3. After completion of 2 above, in the interest of avoiding future remand, the AMC/RO should review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 4. After completion of the above, and any additional development deemed necessary, the issues remaining on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental SOC and be afforded an opportunity to respond thereto. Thereafter, the case should be 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). This appeal 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. 2011). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs