Citation Nr: 1314172 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 08-10 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus, type II. 2. Entitlement to service connection for an eye disorder, to include glaucoma, as secondary to the service-connected diabetes mellitus, type II. 3. Entitlement to a rating in excess of 30 percent prior to August 30, 2011 and in excess of 50 percent since August 30, 2011 for the service-connected history of conversion disorder with mood disorder, dysthymic disorder, and schizoid and paranoid personality traits [hereinafter "service-connected psychiatric disorder"]. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran had active service from June 1971 to June 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. During the current appeal, and specifically by a June 2012 rating decision, the RO increased the rating for the Veteran's psychiatric disorder to 50 percent effective August 30, 2011. As this increase does not represent the maximum rating available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. Although the Veteran requested a videoconference hearing, the Board finds no prejudice in having afforded him an in-person hearing. The Board has broadened the Veteran's eye claim as is stated on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his hypertension has been aggravated by his service-connected diabetes mellitus, type II. 2. Resolving reasonable doubt in the Veteran's favor, his glaucoma has been aggravated by his service-connected diabetes mellitus, type II. 3. Resolving reasonable doubt in the Veteran's favor, his cataracts have been caused by his service-connected diabetes mellitus, type II. 4. On September 10, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw his appeal with respect to the claim for an increased rating for the service-connected psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 2. The criteria for service connection for glaucoma, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 3. The criteria for service connection for cataracts, as secondary to the service-connected diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 4. The criteria for withdrawal of the appeal with respect to the claim for an increased rating for the service-connected psychiatric disorder by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). However, in light of the favorable determinations with respect to the claims for service connection for hypertension and an eye disorder, no further discussion of the duties to notify and assist is needed. With respect to the claim for an increased rating for a psychiatric disorder, as will be seen below, that issue has been withdrawn. Service Connection Claims Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). Service connection is permitted not only for a disability caused by a service-connected disability, but also for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The Board acknowledges that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). The eye disorders at issue here do not qualify as a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012), and 38 C.F.R. § 3.303(b) does not apply to this claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although hypertension is a "chronic disease," the Veteran does not claim that he developed it in service or has had it since service but is, rather, secondary to his service-connected diabetes mellitus. Thus, 38 C.F.R. § 3.303(b) (2012) is not applicable to this claim. A. Hypertension The Veteran claims that his hypertension was caused by his service-connected diabetes mellitus. He asserts, although both disorders were diagnosed at the same time, that he had diabetes years before being diagnosed with hypertension and that his diabetes caused his hypertension. The Veteran's service treatment records do not show any complaints, findings or diagnoses of hypertension or high blood pressure. The Veteran asserts, and the record indicates, that he was diagnosed with hypertension in 1996 or 1997. A July 2007 VA examination report reflects a history of diabetes mellitus and hypertension, both diagnosed in 1997. Based on the Veteran's reported history, the examiner opined that the hypertension is not secondary to the service-connected diabetes mellitus as they were diagnosed at the same time with no history of any prior problems with diabetes or hypertension. A November 2010 VA examination report reiterates the above history. Based on that history, the examiner also opined that the hypertension was not a complication of diabetes as both disorders were diagnosed around the same time. However, the examiner opined that the hypertension is worsened or increased by the diabetes, noting that hyperglycemia can hasten the deposit of fatty substance in the vessels, narrowing them and increasing blood pressure. Given the above, the Board finds that the Veteran's hypertension was not caused by his service-connected diabetes mellitus. Based on his history of being diagnosed with diabetes and hypertension at the same time, two VA examiners have opined that the hypertension was not caused by the diabetes. However, the November 2010 examiner indicated that the Veteran's hypertension has been aggravated by his service-connected diabetes. The examiner did not quantify the degree of aggravation, but the record shows that the hypertension has been aggravated by the diabetes. Resolving reasonable doubt in the Veteran's favor, the Board finds that his hypertension has been aggravated by his service-connected diabetes mellitus. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for hypertension, as secondary to the service-connected diabetes, is warranted. B. Eye Disorders The Veteran claims that his glaucoma was caused by his service-connected diabetes mellitus. He asserts that diabetes is a risk factor for developing glaucoma. The Veteran's service treatment records do not show any complaints, findings or diagnoses of glaucoma or any other eye disorder. A November 2008 VA examination report reflects a 10-year history of glaucoma. The examiner also noted a 10-year history of diabetes mellitus. After examining the Veteran, the examiner provided diagnoses of mild nonproliferating diabetic retinopathy in both eyes with a history of clinically significant macular edema in both eyes, primary open angle glaucoma, and cataracts in both eyes. The examiner opined that, although the nonproliferating diabetic retinopathy was due to diabetes, the glaucoma was not. A November 2010 VA examination report reflects complaints of intermittent blurry vision. The examiner noted that visual impairment is a complication of diabetes but opined that the glaucoma was not a complication of diabetes. The examiner noted that, although people with diabetes have twice as high a chance of developing glaucoma, there is no current medical literature showing that glaucoma is a complication of diabetes. However, the examiner opined that the glaucoma is worsened or increased by the diabetes, noting the same reason as above. An April 2012 VA examination report reflects that the Veteran has early cortical and nuclear cataracts that are more likely than not related to diabetes mellitus. Given the above, the Board finds that the Veteran's glaucoma was not caused by his service-connected diabetes mellitus. Two VA examiners have opined that the glaucoma was not caused by his diabetes, with the November 2010 examiner providing a rationale based on the medical literature. However, the November 2010 examiner indicated that the Veteran's glaucoma has been aggravated by his service-connected diabetes mellitus. Although the examiner did not indicate the degree of aggravation, the record nevertheless shows that the glaucoma has been aggravated by the diabetes. Resolving reasonable doubt in the Veteran's favor, the Board finds that his glaucoma has been aggravated by his service-connected diabetes mellitus. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, service connection for glaucoma, as secondary to the service-connected diabetes mellitus, is warranted. Also, based on the April 2012 examination report, and in resolving reasonable doubt in the Veteran's favor, the Board finds that his cataracts have been caused by his diabetes. Thus, service connection for cataracts, as secondary to the service-connected diabetes mellitus, is also warranted. As for the diabetic retinopathy and macular edema, service connection for diabetic retinopathy with maculopathy has already been established. Increased Rating Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the personal hearing on September 10, 2012 (and prior to the promulgation of a decision in the appeal), the Board received notification from the Veteran that he wished to withdraw his appeal with respect to his claim for an increased rating for his service-connected psychiatric disorder. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this claim, and it is dismissed. ORDER Service connection for hypertension, as secondary to the service-connected diabetes mellitus, type II, is granted. Service connection for glaucoma, as secondary to the service-connected diabetes mellitus, type II, is granted. Service connection for cataracts, as secondary to the service-connected diabetes mellitus, type II, is granted. The appeal with respect to the claim for a rating in excess of 30 percent prior to August 30, 2011 and in excess of 50 percent since August 30, 2011 for the service-connected history of a conversion disorder with mood disorder, dysthymic disorder, and schizoid and paranoid personality traits is dismissed. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs