Citation Nr: 1307653 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 07-27 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a skin disorder of the feet to include tinea pedis. 2. Entitlement to service connection for onychomycosis of the toenails. 3. Entitlement to an increased disability evaluation for the Veteran's Type II diabetes mellitus, currently evaluated as 20 percent disabling. 4. Entitlement to an increased disability evaluation for the Veteran's posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARINGS ON APPEAL The Veteran and the Veteran's spouse ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran had active service from July 1966 to April 1974. He served in the Republic of Vietnam. The Veteran was awarded the Combat Action Ribbon and the Purple Heart with two oak leaf clusters. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Waco, Texas, Regional Office (RO) which determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to a kidney disorder to include kidney stones; denied the claim on the merits; denied service connection for tinea pedis and onychomycosis; and denied increased evaluations for the Veteran's PTSD and Type II diabetes mellitus. In April 2010, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In July 2010, the Board determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for a kidney disorder to include kidney stones. In June 2011, the Appeals Management Center (AMC), in pertinent part, increased the evaluation for the Veteran's PTSD from 30 to 70 percent; granted service connection for peripheral neuropathy of right lower extremity and the left lower extremity; assigned 10 percent evaluations for those disabilities; increased the evaluation for the Veteran's Type II diabetes mellitus from 10 to 20 percent; and effectuated the awards as of January 13, 2006. In November 2011, the AMC granted a total rating for compensation purposes based on individual unemployability (TDIU) and effectuated the award as of January 13, 2006. In April 2012, the AMC granted service connection for nephrolithiasis; assigned a 30 percent evaluation for that disability; and effectuated the award as of January 13, 2006. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The issue of an increased evaluation for the Veteran's PTSD is REMANDED to the RO via the AMC in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The Veteran participated in combat in the Republic of Vietnam. 2. Chronic tinea pedis originated during active service. 3. Chronic onychomycosis originated during active service. 4. The Veteran's Type II diabetes mellitus has been shown to require a prescribed diabetic diet and the use of an oral hypoglycemic agent. The Veteran has not been objectively shown to require insulin or regulation of his activities. CONCLUSIONS OF LAW 1. Tinea pedis was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). 2. Onychomycosis was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). 3. The criteria for an evaluation in excess of 20 percent for the Veteran's Type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321, 3.159, 3.326(a), 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on the claim for VA benefits. In addressing the Veteran's claims of entitlement to service connection for tinea pedis and onychomycosis and an increased evaluation for his Type II diabetes mellitus, the Board finds that VA has satisfied its duty to notify under the VCAA. A March 2006 VCAA notice was provided to the Veteran which informed him of the evidence generally needed to support a claim of entitlement to service connection, the assignment of an evaluation and effective date for an initial award of service connection, and an increased evaluation for his Type II diabetes mellitus; what actions he needed to undertake; and how VA would assist him in developing his claims. The March 2006 VCAA notice was issued to the Veteran prior to the rating decision from which the instant appeal arises. The Veteran's claims were readjudicated in both the August 2007 statement of the case (SOC) and the multiple supplemental statements of the case (SSOC). VA has taken all reasonable action necessary to properly assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). The Veteran has been afforded multiple VA examinations. The examination reports are of record. The Veteran was afforded hearings before a VA Decision Review Officer (DRO) and the undersigned Acting Veterans Law Judge sitting at the RO. Hearing transcripts were prepared and incorporated into the record. In July 2010, the Board remanded the Veteran's appeal the RO so that he could be scheduled for an additional VA examination. The examination was conducted. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiners noted reviewing the record. The examination report reflects that all relevant evaluation and tests were performed. As such, the Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). All identified and available relevant documentation has been secured to the extent possible. All relevant facts have been developed to the extent possible. There remains no issue as to the substantial completeness of the Veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Any duty imposed on VA, including the duty to assist and to provide notification, has been met as set forth above. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In the circumstances of this case, additional efforts to notify or to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Consequently, the Board now turns to the merits of the Veteran's claims. II. Service connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). Service connection may 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) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that he has chronic tinea pedis and onychomycosis which were initially manifested in the Republic of Vietnam secondary to his combat experiences. His service treatment records do not refer to either a chronic skin disorder or onychomycosis. An August 2004 VA treatment record states that the Veteran complained of a fungal infection of the toenails. At the June 2006 hearing before the VA DRO, the Veteran testified that he had initially manifested a fungal infection of the feet while in the Republic of Vietnam. He stated that he developed his skin disorder as the result of the inclement conditions which he encountered during combat operations which left his feet constantly wet. At an August 2006 VA examination for compensation purposes, the Veteran was diagnosed with both tinea pedis and onychomycosis of the toenails. The examiner commented that the Veteran's recurrent tinea pedis and onychomycosis were "not a chronic illness, but separate infections" and "thus the current tinea pedis and onychomycosis are not related to military activities." At the April 2010 hearing before the undersigned Acting Veterans Law Judge sitting at the RO, the Veteran testified that his feet had been constantly wet during combat operations in Vietnam and he subsequently developed chronic skin and toenail disorders. He believed that the claimed disorders were the proximate result of the inhospitable conditions he encountered during active service. At a September 2010 VA examination for compensation purposes, the examiner noted that the Veteran's service treatment records "are negative for any complaints regarding kidney stones, tinea pedis, or onychomycosis." He diagnosed the Veteran with "tinea pedis less likely than not related to active duty" and "onychomycosis less likely than not related to active duty." The examiner did not address the Veteran's contentions that he incurred the claimed disorders during combat. In August 2012, the Veteran submitted several Internet articles in support of his claims for service connection. The articles convey that both tinea pedis and onychomycosis tend to be chronic in nature and to effect diabetic individuals in greater numbers. The Board has reviewed the probative evidence of record including the Veteran's testimony and written statements on appeal. He contends that he incurred both chronic tinea pedis and chronic onychomycosis secondary to his feet being constantly wet during combat in the Republic of Vietnam. The Veteran served in combat in the Republic of Vietnam and was awarded the Combat Action Ribbon and the Purple Hearts. The Board finds that the Veteran's testimony and his statements as to his feet being constantly wet during combat to be competent, credible, and consistent with the circumstances, conditions, and hardships of his service in the Republic of Vietnam. The Veteran has been repeatedly diagnosed by VA physicians with both tinea pedis and onychomycosis. He has submitted medical references conveying that the disorders tend to be chronic in nature. Given these facts, the Board finds that the evidence is in at least equipoise as to whether the claimed disorders are etiologically related to active service. Upon application of the provisions of 38 U.S.C.A. § 1154(b) and resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection is now warranted for both tinea pedis and onychomycosis III. Increased Evaluation A. Historical Review Private clinical documentation conveys that the Veteran was diagnosed with Type II diabetes mellitus in 1996. In August 2004, VA established service connection for Type II diabetes mellitus; assigned a 10 percent evaluation for that disability; and effectuated the award as of November 3, 2002. In June 2011, the AMC granted service connection for peripheral neuropathy of both the right lower extremity and the left lower extremity; assigned 10 percent evaluations for those disabilities; increased the evaluation for the Veteran's Type II diabetes mellitus from 10 to 20 percent; and effectuated the awards as of January 13, 2006. B. Evaluation Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). A 20 percent evaluation is warranted for diabetes mellitus requires the use of insulin and a restricted diet or the use of an oral hypoglycemic agent and a restricted diet. A 40 percent evaluation requires the use of insulin, a restricted diet, and regulation of activities. A 60 percent evaluation requires the use of insulin, a restricted diet, and regulation of activities; episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, and complications that would not be compensable if separately evaluated. A 100 percent evaluation requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities); episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider; and either a progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable diabetic complications are to be separately evaluated unless they are part of the criteria used to support a 100 percent schedular evaluation. Noncompensable complications are considered to be part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2012). Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). At the June 2006 hearing before a DRO, the Veteran testified that his diabetes mellitus was controlled with a diabetic diet. He acknowledged that his diabetes mellitus did not necessitate the use of either insulin or an oral medication. At the August 2006 VA examination for compensation purposes, the Veteran reported that his diabetes mellitus was presently controlled by a diabetic diet and had "no known complications." The Veteran was found to have "no signs or symptoms of diabetes." A November 2008 VA treatment record states that the Veteran exhibited elevated blood sugars and had been prescribed metformin, an oral antidiabetic medication. At the April 2010 hearing before the undersigned Acting Veterans Law Judge, the Veteran testified that his diabetes mellitus was controlled by a diabetic diet and the use of prescribed metformin and was productive of bilateral diabetic peripheral neuropathy. He stated that his physicians had not regulated his activities due to his diabetes mellitus. . At a September 2010 VA examination for compensation purposes, the Veteran reported that he took prescribed metformin; followed a diabetic diet; had no restriction of activity due to his diabetes mellitus; and had no hospitalizations or visits to his diabetic care provider due to either ketoacidosis or hypoglycemia within the preceding year. The Veteran's Type II diabetes mellitus has been shown to be controlled by a prescribed diabetic diet and metformin, an oral hypoglycemic agent. He has been diagnosed with bilateral lower extremity diabetic peripheral neuropathy. Service connection has been established for those disabilities and 10 percent evaluations have been assigned. His Type II diabetes mellitus has not been objectively shown to require either the use of insulin or the prescribed regulation of his activities. In the absence of such findings, the Board finds that the current 20 percent evaluation adequately reflects his diabetic disability during all relevant time periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). . The Board has also evaluated whether the Veteran's claim should be referred for consideration of his entitlement to an extra-schedular evaluation for his service-connected Type II diabetes mellitus under 38 C.F.R. § 3.321(b)(1) (2012). The Court has clarified that there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular evaluation. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular evaluation. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the evidence in this instant appeal does not establish such an exceptional disability picture as to render the schedular evaluation is inadequate. A comparison between the level of severity and symptomatology of the Veteran's type II diabetes mellitus with the established criteria found in 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012) reflects that the diagnostic criteria reasonably describes the Veteran's disability level and symptomatology. In other words, he does not have any symptoms from his service-connected Type II diabetes mellitus that are unusual or are different from those contemplated by the schedular criteria. Indeed, the Veteran's symptoms address the need to follow a prescribed diabetic diet and the use of an oral antidiabetic medication. Although the Board recognizes the Veteran's complaints, and is mindful of his comments, the evidence simply does not show that his disability is unusual or exceptional. The Board recognizes the Veteran's diabetic difficulties, but finds that the rating criteria reasonably describe his disability level. Therefore, the Board has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2012) is not warranted. Accordingly, an evaluation in excess of 20 percent for the Veteran's Type II diabetes mellitus is denied. ORDER Service connection for tinea pedis is granted. Service connection for onychomycosis is granted. An evaluation in excess of 20 percent for the Veteran's Type II diabetes mellitus is denied. REMAND In November 2011, the Veteran submitted a November 2011 VA treatment record which states that the Veteran was "permanently unemployable" due to his PTSD. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparent increase in severity of the Veteran's PTSD, the Board finds that additional VA psychiatric evaluation would be helpful in resolving the issues raised by the instant appeal. VA clinical documentation dated after May 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his service-connected PTSD after May 2012, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2011). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after May 2012. 3. Then schedule the Veteran for a VA psychiatric examination for compensation purposes in order to determine the nature and severity of his service-connected PTSD. All indicated tests and studies should be accomplished and the findings, including a Global Assessment of Functioning (GAF) score, then reported in detail. The examiner should express an opinion as to whether the Veteran's PTSD renders him "permanently unemployable". All relevant medical records, including the claims folders, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this remand. The reports should be returned to the examiner or examiners if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ____________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs