Citation Nr: 1309311	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  08-24 174	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.   Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hypertension, to include as due to diabetes mellitus; and if so, entitlement to service connection for hypertension secondary to service-connected diabetes mellitus. 

2.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for coronary artery disease, to include as due to diabetes mellitus; and if so, entitlement to service connection for coronary artery disease secondary to service-connected diabetes mellitus. 

3.  Entitlement to service connection for renal disease (chronic kidney disease) as secondary to diabetes mellitus.

4.  Entitlement to an initial rating in excess of 20 percent for the service-connected diabetes mellitus. 


REPRESENTATION

Appellant represented by:	Robert W. Legg, Attorney


ATTORNEY FOR THE BOARD

A.M. Ivory, Counsel


INTRODUCTION

The Veteran had active service from December 1954 to November 1956. 

This matter comes before the Board of Veterans' Appeals from August 2008, May 2009, and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  

By way of history, in an April 1995 rating decision the RO denied the Veteran's claims of entitlement to service connection for hypertensive cardiovascular disease.  The Veteran did not appeal and the April 1995 rating decision became final.  In November 2007 the Veteran filed a petition reopen his claims for entitlement to service connection for hypertension and coronary artery disease.  In the August 2008 rating decision the RO denied service connection for hypertension and coronary artery disease.  Regardless of what the RO has done, the Board must address the question of whether new and material evidence has been received to reopen the claim, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim de novo.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995).  In other words, the Board is required to first address whether new and material evidence has been presented before the merits of a claim can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  

In November 2010 the Board granted the Veteran entitlement to compensation under 38 U.S.C.A. § 1151 for diabetes mellitus, due to VA treatment; the December 2010 rating decision than granted the Veteran service connection for diabetes mellitus with an initial 20 percent disability rating, effective February 28, 2007.  In November 2010 the Board also remanded the issues of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for  hypertension and for coronary artery disease; as well as, the issue of entitlement to service connection for renal disease (chronic kidney disease) as secondary to diabetes mellitus for further development.  The Board finds that for the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for hypertension and coronary artery disease, to include as due to diabetes mellitus, as well as the issue of entitlement to service connection for renal disease have been fulfilled. As the requested development has been completed, no further action to ensure compliance with the remand directive is required.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

On the Veteran's December 2011 VA-9 Substantive Appeal, the Veteran requested a hearing before the Board but also in December 2011 the Veteran stated that he would have a Decision Review Officer (DRO) hearing instead.  The Veteran was scheduled for a DRO hearing in September 2012; however, he failed to report for that hearing and provided no explanation for not appearing at the hearing.  The Board will therefore proceed with his appeal as though the request for a hearing had been withdrawn.  See 38 C.F.R. § 20.704(d). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The now reopened issue of entitlement to service connection for coronary artery disease is REMANDED to the Department of Veterans Affairs Regional Office. 


FINDINGS OF FACT

1.  All notification and development action needed to fairly adjudicate the issues herein decided has been accomplished.  

2.  By way of an April 1995 rating decision, the RO denied the Veteran's claim for service connection for hypertensive cardiovascular disease finding that the Veteran's for hypertensive cardiovascular disease was not incurred in or aggravated by the Veteran's military service.  The Veteran did not appeal that decision and it became final. 

3.  The additional evidence received since the April 1995 rating decision is neither cumulative nor redundant of evidence previously of record; it relates to previously unestablished facts necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claims for service connection for hypertension and coronary artery disease.  

4.  Hypertension was not present in service or for many years thereafter, and it was not caused or aggravated by the service-connected diabetes mellitus.

5.  Chronic kidney disease was not present in service or for many years thereafter, and it was not caused or aggravated by the service-connected diabetes mellitus.

6.  The Veteran's diabetes mellitus is managed by oral medication and restricted diet; however, there is no evidence it is managed by restriction of activities or episodes of hypoglycemic reactions or ketoacidosis requiring hospitalization.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the claim for service connection for hypertension.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  

2.  New and material evidence has been received to reopen the claim for service connection for coronary artery disease.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  

3.  The criteria for establishing service connection for hypertension are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a) (2012).  

4.  The criteria for establishing service connection for chronic kidney disease are not met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310(a) (2012).  

5.  The criteria for an initial rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.75, 4.119, Diagnostic Code 7913 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist 

The Veterans Claims Assistance Act (VCAA), codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created and are codified as amended at 38 C.F.R. § 3.159 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2012).

The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The RO sent the Veteran correspondences in December 2007, April 2008, and May 2011.  The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  The December 2007, April 2008, and May 2011 also informed the Veteran of the criteria of the applicable disability ratings and effective date elements of his claims.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra.  

Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim at this time.  All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible.  The evidence of record includes the Veteran's service treatment records, VA treatment reports, VA examinations, and statements from the Veteran and his representative.  The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain.  There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained.  The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal.  Thus, the Board finds that VA has obtained, and made reasonable efforts to obtain, all evidence that might be relevant to the issues herein decided, and that VA has satisfied the duty to assist.  All pertinent due process requirements have been met.  See 38 C.F.R. § 3.103 (2012).



II. Analysis

Petitions to Reopen

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.  When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans' Appeals, such determination is subsumed by the final appellate decision.  38 C.F.R. § 20.1104. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).  

The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material.  See Shade v. Shinseki, 24 Vet. App.110, 117 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). 

Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]"  Id.  Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim.  Id.  Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion.  Id., see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312 (1999).  Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision."  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. 

In determining if new and material evidence has been received, the evidence is generally presumed to be credible. See Kutscherousky v. West, 12 Vet. App. 369 (1999) (per curium); Justus v. Principi, 3 Vet. App. 510 (1992).   In addition, all of the evidence received since the last final disallowance shall be considered in making the determination.  See Evans v. Brown, 9 Vet. App. 273, 283 (1996). 

By the way of an April 1995 rating decision the RO denied the Veteran's claim of service connection for hypertensive cardiovascular disease, in part because there was no evidence that it was due to or related to the Veteran's military service.  The Veteran did not file a substantive appeal and the April 1995rating decision became final.  

In November 2007 the Veteran submitted a petition to reopen his previously denied claims of entitlement to service connection for hypertension and coronary artery disease.  The Board notes that the Veteran now asserts that his hypertension and coronary artery disease are secondary to his service-connected diabetes mellitus.  In Robinson v. Mansfield, 21 Vet. App. 545 (2007), the Court cited the decision in Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006), which held that "although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim."

Since the April 1995 RO decision the Veteran was afforded VA examinations in September 2007 and August 2011 and has since been granted service connection for diabetes mellitus.  New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it may not convince the Board to grant a claim.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  The Board finds that the grant of service connection for diabetes mellitus is new and material because it is relevant to establishing a service-connected disability for the Veteran's hypertension and coronary artery disease to be secondary to.  In addition, the Veteran's September 2007 and August 2011 VA examinations render opinions on etiology.  Therefore, the Board concludes that evidence submitted since the April 1998 and May 1998 decisions is new and material, and thus to this extent only, the claim for service connection for hypertension and coronary artery disease are reopened.  

Thus, the Board finds that new and material evidence has been submitted for the Veteran's claims of entitlement to service connection for hypertension and coronary artery disease.  Moreover, additional development of evidence will be undertaken (see the below remand) before the issues of entitlement to service connection for coronary artery disease is addressed on a de novo basis.  Manio v. Derwinski, 1 Vet. App. 140 (1991). 

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease 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 will be presumed for chronic disease, including hypertension, if manifested to a compensable degree within one year after discharge from service.  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).   When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Hypertension

The Veteran asserts that his current diagnosis of hypertension is secondary to his service-connected diabetes mellitus.   The Board notes that only the Veteran's October 1956 Report of Medical Examination for Separation is of record while the Veteran's other service treatment records are not of record and are presumed to be fire related.  If service records are presumed to have been destroyed while in government custody, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case.  Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991).   There is also a heightened obligation to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where presumed destroyed while in custody of the government.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). 

The Board notes that on the Veteran's October 1956 Report of Medical Examination for Separation there is no finding, complaint, or diagnosis of hypertension.  At the Veteran's July 1994 VA examination it was noted that the Veteran had a history of high blood pressure and was diagnosed with hypertensive cardiovascular disease; at the September 2007 VA examination it was noted that the Veteran was diagnosed with hypertension in 1985 and at the August 2011 VA examination it was noted that the Veteran had a diagnosis of hypertension for more than 30 years.  The evidence of record does not show, nor does the Veteran contend, that his hypertension was manifested during service or within the one-year after service, or that it was a chronic condition that can be attributed to service through the continuity of symptoms demonstrated after service.  The presumption of service connection does not attach.  The Board finds that though the exact date of diagnosis seems to fluctuate it is still roughly 20 years after his military service; this lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service).   Moreover, there are no opinions of record, including the Veteran's own statements, which relate his hypertension directly to his military service.  Thus, the Board finds that the Veteran's hypertension is not directly related to his military service.  

Instead, the Veteran asserts that his hypertension is secondary to his service-connected diabetes mellitus.  However, after a careful review of the Veteran's claims file, including the Veteran's statements, the Board finds that the preponderance of the evidence is against the Veteran's claim of secondary service connection. 

At the September 2007 VA examination it was noted that the Veteran was diagnosed with hypertension in 1985.  The VA examiner stated that the Veteran's hypertension was not a complication of his diabetes mellitus since this condition preexisted his diabetes mellitus and was diagnosed in 1985 and it was not worsened or increased by the Veteran's diabetes mellitus. 

The Veteran was afforded a VA examination in August 2011; it was noted that the Veteran had a history of hypertension for several years.   The VA examiner opined that the Veteran's hypertension was not a complication of the Veteran's diabetes mellitus.  The rationale was that the Veteran had hypertension for many years before he developed objective evidence of diabetes mellitus.  In addition it has not been aggravated by diabetes mellitus as it has remained stable since 2003, when the Veteran developed objective evidence of diabetes mellitus.  He also stated that the Veteran's hypertension was not worsened or increased by the Veteran's diabetes mellitus.  

Thus, the Board finds that the only opinions of etiology of record are against the Veteran's claim of entitlement to service connection for hypertension secondary to the service-connected diabetes mellitus.  The Board finds that these opinions (September 2007 and August 2011 VA examinations) are probative because not only did the VA examiners give clear opinions but they also stated that the Veteran's hypertension was diagnosed before his diabetes mellitus; the earliest definite date of diagnosis for the Veteran's hypertension is 1985 while the date of diagnosis for the Veteran's diabetes mellitus is May 2002.  The findings of a physician are medical conclusions that the Board cannot ignore or disregard.  Willis v. Derwinski, 1 Vet. App. 66 (1991).  Thus, the Board finds that the only probative opinions of record are the VA examiner's opinions, which are against the Veteran's claim. 

In regards to the Veteran's statements, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability.  Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998).   In addition, the Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself.  The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  A careful review of the Veteran's treatment records did not reveal any references that that the Veteran believed his hypertension was due to his service-connected diabetes mellitus.  Lay statements made when medical treatment was being rendered may be afforded greater probative value.  These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).  The Board finds it pertinent that the only time the Veteran stated that his hypertension was due to his service-connected diabetes mellitus were statements made to the Board.

In light of evidence of record that the fact that the only statements relating the Veteran's hypertension secondary to his service-connected diabetes mellitus were made after the pursuit of this claim, the Board has to question the credibility of his contentions.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony).  The Board finds that the Veteran's lay statements, while competent, are neither credible nor more probative than the evidence of record because the evidence shows that the Veteran only reported that his hypertension was due to his service-connected diabetes mellitus after filing his claim for service connection.  Therefore, the Board finds that there is no probative evidence of record that relates the Veteran's hypertension secondary to his service-connected diabetes mellitus.  

Generally, when a Veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994).  To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin, supra.  However, in this case, the Board finds that the only probative opinions of nexus are against the Veteran's claim.  Thus, the Board finds that service connection must be denied.   

In sum, the Board finds the preponderance of the evidence is against the Veteran's claim since the only probative opinions of record are against the Veteran's claim.  The evidence does not support a finding that his hypertension is secondary to or aggravated by his service-connected diabetes mellitus.  The preponderance of the evidence is against the Veteran's claim.  Accordingly, the benefit of the doubt doctrine does not apply and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).   

Chronic Kidney Disease

The Veteran asserts that his current diagnosis of chronic kidney disease is secondary to his service-connected diabetes mellitus.  First, the Board finds that there is no evidence that the Veteran's chronic kidney disease is directly related to the Veteran's military service.  The Board notes that on the Veteran's October 1956 Report of Medical Examination for Separation there is no finding, complaint, or diagnosis related to the kidneys.  In addition, the Veteran was not diagnosed with chronic kidney disease until 1999; this lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service).  Finally, there are no opinions, either medical or lay, that relate the Veteran's chronic kidney disease directly to the Veteran's military service.  The evidence of record does not show, nor does the Veteran contend, that his chronic kidney disease was manifested during service or within the one-year after service.  He does contend that his chronic kidney disease was a chronic disorder that could be related to service under the provisions of 38 C.F.R. §§ 3.303(b), 3.303(a) and 3.309(a).  

Instead, the Veteran asserts that his chronic kidney disease is secondary to his service-connected diabetes mellitus.  However, after a careful review of the Veteran's claims file, including the Veteran's statements, the Board finds that the preponderance of the evidence is against the Veteran's claim of secondary service connection. 

The Veteran's claims file indicates that in 1999 the Veteran was diagnosed chronic renal failure.  The Veteran was afforded a VA examination in September 2007 and the VA examiner opined that the Veteran's kidney disease was a complication of his diabetes mellitus.  The rationale was that the onset of the complication was in relation to the onset of his diabetes mellitus.  

At the August 2011 VA examination it was noted that the Veteran had an elevated creatinine reading from 1.5 to 2.3 for the past 12 years with no significant changes since.  He noted that sequential review of microalbumin tests since 2008 to the present revealed more than five normal tests and not one abnormal test.  In addition, sequential review of creatine levels revealed stable results from 1999 to the present.  The VA examiner stated that the Veteran's chronic renal failure was stable as evidenced by stable cretainine levels since 1999 and that it was not a complication of the Veteran's diabetes mellitus.  The rationale was that the Veteran had abnormal creatinine levels before he developed objective evidence of diabetes in 2003.  Furthermore, the Veteran lacks the diagnostic hallmark of diabetic nephropathy, which is sustained microalbuminuria.  The VA examiner stated that the condition has not been aggravated by the Veteran's diabetes mellitus as evidenced by that fact that creatinine levels though elevated have remained stable since the Veteran developed objective evidence of diabetes mellitus in 2003.  He also stated that the Veteran's chronic kidney failure was not worsened or increased by the Veteran's diabetes mellitus.  

Thus, the Board finds that though there are two opinions, one for the Veteran's claim and one against the Veteran's claim, the probative opinion of record is against the Veteran's claim of entitlement to service connection for chronic kidney failure secondary to the service-connected diabetes mellitus.  The findings of a physician are medical conclusions that the Board cannot ignore or disregard.  Willis v. Derwinski, 1 Vet. App. 66 (1991).  However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion.  Wilson v. Derwinski, 2 Vet. App 614 (1992).  The Board finds that the September 2007 opinion is not probative since it is just a statement without any rationale while the August 2011 VA examiner discussed that not only has the Veteran had stable renal function since 1999, and thus, since his diagnosis of diabetes mellitus but also that the Veteran lacks the diagnostic marks of diabetic nephropathy, which is sustained microalbuminuria.  Greater weight may be placed on one physician's than another's depending on factors such as the reasoning employed by the physicians and whether or not (and the extent to which) they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Thus, the Board finds that the only probative opinion of record is the August 2011 VA examiner opinion, which is against the Veteran's claim. 

As noted above, a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); (Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability.  Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998).   A careful review of the Veteran's treatment records did not reveal any references that that the Veteran believed his chronic kidney disease was due to his service-connected diabetes mellitus.  Lay statements made when medical treatment was being rendered may be afforded greater probative value.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  The Board finds it pertinent that the only time the Veteran stated that his chronic kidney disease was due to his service-connected diabetes mellitus were statements made to the Board.

The Board finds that the Veteran's lay statements, while competent, are neither credible nor more probative than the evidence of record because the evidence shows that the Veteran only reported that his chronic kidney disease was due to his service-connected diabetes mellitus after filing his claim for service connection.  See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995).   Therefore, the Board finds that there is no probative evidence of record that relates the Veteran's chronic kidney disease secondary to his service-connected diabetes mellitus.  

Generally, when a Veteran contends that a service-connected disorder has caused or aggravated a secondary disability, there must be competent medical evidence of such causation or aggravation.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995); Jones v. Brown, 7 Vet. App. 134 (1994).  To prevail on the issue of secondary service causation, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability.  Wallin, supra.  In this case, the Board finds that the only probative opinion of nexus is against the Veteran's claim.  Thus, the Board finds that service connection must be denied.   

In sum, the Board finds the preponderance of the evidence is against the Veteran's claim since the only probative opinion of record is against the Veteran's claim.  The evidence does not support a finding that his chronic kidney disease is secondary to or aggravated by his service-connected diabetes mellitus.  The preponderance of the evidence is against the Veteran's claim.  Accordingly, the benefit of the doubt doctrine does not apply and the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).   

Service-Connected Diabetes Mellitus

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath, 1 Vet. App. at 594.  In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected.  Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson, 12 Vet. App. at 126. 

The November 2010 Board decision found that the Veteran's diabetes mellitus was due to VA treatment and the Veteran was granted entitlement under 38 U.S.C.A. § 1151; the December 2010 rating decision then granted the Veteran service connection and assigned an initial rating of 20 percent effective February 28, 2007.  The Veteran is currently rated 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913.

Under 38 C.F.R. § 4.119, Diagnostic Code 7913 diabetes mellitus warrants a 10 percent rating if the disease is manageable by diet only.  A 20 percent rating is warranted if management of the disease requires insulin and restricted diet, or oral hypoglycemic agents and restricted diet.  A 40 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities.  A 60 percent rating is warranted if management of the disease requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice per month visits to a diabetic care provider, plus complications that would not be compensable if separately rated.  A 100 percent rating is warranted for 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.  38 C.F.R. § 4.119, Diagnostic Code 7913.

Compensable complications are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).

In order for the Veteran to warrant an initial rating in excess of 20 percent the Veteran's diabetes mellitus must be manifested by the need of insulin, restricted diet, and regulation of activities in order to warrant a higher rating.  However, at both the September 2007 VA examination and August 2011 VA examination it was specifically stated that the Veteran did not have any restriction in his ability to perform strenuous activities.  While at the September 2007 VA examination it was noted that the Veteran was instructed to follow a restricted or special diet, it was noted at the August 2011 VA examination the Veteran did not follow a restricted or a special diet.  However, at both VA examination it was noted that the Veteran did not have any hypoglycemia reactions or ketoacidosis.  Thus, the Board finds that the Veteran's diabetes mellitus does not warrant a higher initial rating since there is no evidence that his diabetes mellitus requires a regulation of activities.  The Board notes that the Veteran's VA treatment records have been reviewed however, there is no discussion of any regulation of activities in regards to his diabetes mellitus. 

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The Veteran has not described any symptomatology related to his diabetes mellitus that is outside of the rating criteria.  Also, the Board notes that the evidence of record establishes that the reason the Veteran does not work is not related to his service-connected diabetes mellitus; instead, at the September 2007 VA examination it was noted that the Veteran retired in 1994 due to psychiatric problems.  In addition, to there being no evidence that the Veteran's diabetes mellitus does not interfere with the Veteran's employment the Board notes that as discussed herein above, the Veteran's diabetes mellitus does not require a regulation of activities.  Moreover, it was noted at the August 2011 VA examination that he has not been hospitalized in the past year for his diabetes mellitus.  Thus, the Board finds that there is no evidence of marked interference with employment or frequent periods of hospitalization and the rating criteria is therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. 

In sum, the Board finds that the Veteran does not warrant an initial rating in excess of  20 percent since there is no evidence that the Veteran's activities have been regulated because of his diabetes mellitus.  Thus, an initial rating in excess of 20 percent is not warranted.  

ORDER

As new and material evidence to reopen the claim for service connection for hypertension has been received, the appeal to this extent is allowed.

As new and material evidence to reopen the claim for service connection for coronary artery disease has been received, the appeal to this extent is allowed subject to further action discussed herein below.  

Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus, is denied. 

Entitlement to service connection for chronic kidney disease is denied. 

Entitlement to an initial rating in excess of 20 percent for the service-connected diabetes mellitus is denied. 


REMAND

Unfortunately, the Board finds that another remand is warranted.  The Board finds that the November 2010 remand orders were not complied with; where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The November 2010 remand directed for the Veteran to be afforded a VA examination to determine if the nature and etiology of his coronary artery disease.  The Veteran was afforded a VA examination in August 2011 and the VA examiner stated that there was no clinical evidence that the Veteran had any coronary artery disease.  However, in September 2012 the Veteran's representative stated that the Veteran did have a current diagnosis of coronary artery disease.  The Board notes the November 2010 remand directed the VA examiner to provide a complete rationale, which should include citations to medical literature, for each opinion, with details as to how and why a particular conclusion was reached; however, the August 2011 VA examiner failed to.  Thus, the Veteran's claim of entitlement to service connection for coronary artery disease is once again remanded in order to determine if he has a current diagnosis and if not why there are diagnoses of record. 

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain and associate with the claims file all updated VA and private treatment records.  

2.  The Veteran's claims file should be sent to the August 2011 VA examiner for an addendum opinion, if he is not available or he cannot provide an addendum opinion then it must be documented and the Veteran must be afforded a new VA examination.  The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted.  

The VA examiner should answer the following questions:

A) Does the Veteran have a current diagnosis of coronary artery disease?

B) If not, has the Veteran ever had a diagnosis of coronary artery disease?

C) If the Veteran does not have a diagnosis of coronary artery disease please discuss the previous diagnoses of record. 

D) If the Veteran does have a current diagnosis
was it caused by or aggravated (permanently worsened) by a service-connected diabetes mellitus? 

The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached.  

If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. 

3.  The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated.  The RO should then readjudicate the remaining claim on appeal.  If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.  No action is required of the appellant unless he is notified.  

The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims.  The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the appellant until further notice.  The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated.  The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655.  

This claim 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. 2012).




______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs