Citation Nr: 1315339 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 07-38 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to the Veteran's service-connected Type II diabetes mellitus. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder and depression, to include as secondary to the Veteran's service-connected disabilities, including Type II diabetes mellitus, bilateral diabetic peripheral neuropathy, and bilateral diabetic retinopathy with cataracts. 3. Entitlement to an initial rating in excess of 20 percent for Type II diabetes mellitus. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to October 1970. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from April 2006, June 2006, June 2007, and April 2008 rating decisions of the Department of Veterans Affairs' (VA) Regional Office (RO) in Nashville, Tennessee. In December 2010, the Board reopened the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder characterized as a "nervous disorder" and remanded the claims for service connection for an acquired psychiatric disorder, to include a mood disorder and depression, to include as secondary to the Veteran's service-connected disabilities, including Type II diabetes mellitus, bilateral diabetic peripheral neuropathy, and bilateral diabetic retinopathy with cataracts; service connection for hypertension; an initial rating in excess of 20 percent for Type II diabetes mellitus; and a TDIU For further development. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. The issues of entitlement to service connection for gastroesophageal reflux disease (GERD) was raised by the Veteran in an October 2012 informal hearing presentation, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In October 2012, prior to the promulgation of the Board's decision in the appeal, the Veteran submitted a written statement indicating that he desired to withdraw his appeal for entitlement to an initial rating in excess of 20 percent for Type II diabetes mellitus. 2. Hypertension has been aggravated by service-connected Type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial rating in excess of 20 percent for Type II diabetes mellitus, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. Service connection for hypertension is warranted as secondary to the Veteran's service-connected Type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the Veteran's increased rating claim, as the claim is being dismissed, any issues regarding VCAA notice are irrelevant. With regard to the Veteran's claim for service connection for hypertension, in view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. II. Merits of the Claims A. Withdrawal, Increased rating claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or his authorized representative. 38 C.F.R. § 20.204. In the present case, in a statement received by the Board in October 2012, the Veteran stated that he wished to withdraw his appeal for entitlement to an initial rating in excess of 20 percent for Type II diabetes mellitus. Hence, there remains no allegation of error of fact or law for appellate consideration in regard to this claim. Accordingly, the Board does not have jurisdiction to review the appeal for that benefit and this appeal must be dismissed. B. Service Connection Claim It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability which is proximately due to, or aggravated by service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Veteran's primary contention is that he has hypertension that is secondary to his service-connected diabetes mellitus. On VA hypertension examination in February 2008, the Veteran was diagnosed with essential hypertension which the examiner noted was diagnosed at the same time as the diabetes and opined that the hypertension is less likely than not secondary to the Veteran's service-connected diabetes mellitus. However, the VA examiner failed to review the claims file and it was unclear whether the examiner addressed both types of secondary service connection-causation and aggravation. Accordingly, in December 2010 the Board found that the VA examination was inadequate for adjudication purposes and remanded the claim for a second opinion. Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to the Board's December 2010 remand for an opinion that addresses both types of secondary service connection, the Veteran underwent a VA general medical examination in May 2011. He was diagnosed with essential hypertension. The examiner indicated that the Veteran's hypertension was diagnosed around the same time as his diabetes and did not have its onset during his active service. The examiner opined that his hypertension is not etiologically related to his service-connected diabetes, but that it is as likely as not that the hypertension is permanently aggravated by his service-connected diabetes. However, to state the baseline manifestation of hypertension and then to extrapolate the exact extent of aggravation caused by diabetes would be very difficulty without resorting to mere speculation. The Board finds that this May 2011 VA opinion is entitled to great probative value as, unlike the February 2008 VA examination, the May 2011 opinion addressed the issue of whether the Veteran's hypertension has been aggravated by his Type II diabetes mellitus. In this regard, there is no contrary opinion which states that the Veteran's hypertension has not been aggravated by diabetes mellitus. As noted above, VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established. 38 C.F.R. § 3.310(b). The Board acknowledges that the examiner could not state the baseline manifestation of the Veteran's hypertension and the extent of aggravation caused by diabetes without resort to speculation. The examiner has opined that there is aggravation of the hypertension by the diabetes. Although the examiner was unable to quantify the extent of the increase in severity, nevertheless, the opinion is favorable to the claim for service connection on the basis of aggravation. The Board does not assign ratings in the first instance, and need not determine whether further development is required to quantify the extent of aggravation when the adjudicative decision regarding assignment of a rating is in order. Therefore, the Board, in reviewing the record in its entirety, considering the favorable medical opinion evidence of record in support of the Veteran's claim, the Board finds that service connection for hypertension is warranted on the basis that the hypertension was caused or aggravated by the Veteran's service-connected Type II diabetes mellitus. Accordingly, service connection for hypertension is warranted. The claim, therefore, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER The appeal seeking entitlement to an initial rating in excess of 20 percent for Type II diabetes mellitus is dismissed. Service connection is warranted for hypertension, secondary to service-connected Type II diabetes mellitus. To that extent, the appeal is granted. REMAND Unfortunately, another remand of the Veteran's claim for service connection for an acquired psychiatric disorder, and remand of the TDIU claim, is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Acquired Psychiatric Disorder Claim The Veteran asserts that his acquired psychiatric disorder is due to his "general medical condition," including his service-connected Type II diabetes mellitus, diabetic peripheral neuropathy of the bilateral lower extremities, and bilateral diabetic retinopathy with cataracts. In December 2010, the Board remanded the claim for an opinion as to whether the Veteran's current acquired psychiatric disorder may be directly related to his active military service or is secondary to his service-connected disabilities. In June 2011, the Veteran was afforded a VA mental disorders examination. The claims file was unavailable for review. He was diagnosed with depressive disorder, not otherwise specified (NOS). In an April 2012 addendum, another examiner indicated that he reviewed the Veteran's claims file which indicates that the Veteran's depressive symptoms were linked to the loss of employment (being laid off; adjustment disorder) during August 2007. However, he opined that even if one assumes the Veteran's medical problems cause his current depression, only some of his most serious problems are service-connected. Finally, the examiner opined that he could not assert that the Veteran's depressive symptoms are as likely as not caused by or a result of service. Unfortunately, the opinions do not address whether the Veteran's depressive disorder has been aggravated by his service-connected disabilities. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, a supplemental opinion should be obtained that addresses the issue of secondary service connection on the basis of aggravation. TDIU Claim The Veteran is currently service-connected for diabetes mellitus, Type II with erectile dysfunction, rated 20 percent disabling; diabetic peripheral neuropathy of the right and left lower extremity, each rated 10 percent disabling; coronary artery disease, rated 10 percent disabling; and bilateral diabetic retinopathy with cataracts, rated 0 percent disabling. At the time of the VA examinations conducted for purposes of adjudicating the TDIU claim, a combined 40 percent rating was in effect for the Veteran's service-connected disabilities. 38 C.F.R. § 4.25, TABLE I (2012). Under VA regulations, the combined 40 percent rating in effect previously when the claim for TDIU was adjudicated does not meet the schedular criteria to render him eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16(a). As discussed in the opinion above, service connection for hypertension, as aggravated by service-connected diabetes, has been granted. In December 2010, the Board remanded the claim for the Veteran to be afforded a VA examination to determine whether his service-connected disabilities preclude him from performing substantially gainful employment. Accordingly, in May 2011 the Veteran underwent a VA joints examination. The examiner opined that all of the Veteran's conditions seemed to be moderate to severely functionally limiting for the Veteran, and noted that the bilateral knee and back disorders, for which service connection was not in effect at that time, were the most functionally limiting and decreased the Veteran's ability to ambulate. The examiner did not separately describe the effect of the service-connected disabilities. On VA general medical examination in May 2011, the Veteran was diagnosed with adult onset diabetes mellitus, type II; hypertension; hyperlipidemia; early diabetic and hypertensive nephropathy; depressive disorder, NOS; diabetic retinopathy and cataracts; presbyopia; keratoderma; onychomycosis; gastroesophageal reflux disease; erectile dysfunction; and mild peripheral neuropathy of the lower extremities. The examiner noted the Veteran's assertion that lower back pain (for which service connection is not in effect) and service-connected peripheral neuropathy resulted in unemployability. The examiner opined that the Veteran could not stand or walk for more than 10 minutes and could not sit for more than 10 minutes without support for his low back, but did not separately describe the effect of the service-connected disabilities. The examiners who conducted the examinations of record at this time have not provided opinions as to the effects of the Veteran's service-connected disabilities, considered alone, on performance of substantially gainful employment. Moreover, consistent with the decision above, the list of service connection disabilities has changed, with the addition of hypertension to the list of service-connected disabilities. On Remand, after the decision above is implemented, and the Remanded claim is adjudicated, the agency of original jurisdiction (RO/AMC) should provide the examiner with a current list of the Veteran's service-connected disabilities, and an addendum report should be obtained that will adequately address the issue of the effect of the service-connected disabilities on the Veteran's employability, without reference to disorders for which service connection is not in effect. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC shall obtain a supplemental medical opinion from the June 2011 VA mental disorders examiner (or another appropriate medical professional if Dr. B.W. is unavailable), without further examination of the Veteran. If another medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. Based on review of the claims folder, the examiner/reviewer should state whether it is at least as likely as not (i.e., at least 50 percent probable) that the Veteran's depressive disorder is aggravated by the Veteran's service-connected disabilities. If so, the examiner should quantify the extent of aggravation, if possible, or explain why quantification is not possible. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner/reviewer cannot answer any question posed without resorting to unsupported speculation, the examiner should so state, and explain why that is so. 2. After the Remanded claim is adjudicated, the RO/AMC should provide the examiner with an updated list of the service-connected disabilities, and request supplemental medical opinion(s) from the May 2011 VA general medical examiner, or another/other appropriate medical professional(s) if Dr. M.M. is unavailable or additional specialty opinion is necessary), without further examination of the Veteran. If another/other medical examination is needed in order to provide the requested opinion, please so schedule. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in conjunction with the examination. The examiner must evaluate and discuss the effect of the Veteran's service-connected disabilities on his employability. Based on review of the claims folder, the examiner/reviewer should describe the employment tasks that the Veteran's service-connected disabilities (currently, diabetes mellitus, Type II with erectile dysfunction; diabetic peripheral neuropathy of the right and left lower extremity; coronary artery disease; hypertension, and bilateral diabetic retinopathy with cataracts), without consideration of his non-service-connected disabilities, render him unable to perform. The examiner should describe the types of employment tasks the Veteran would be able to perform despite his service-connected disabilities, if no other disorders were present. The examiner should explain the effect of the service-connected disabilities on the Veteran's ability to secure or follow a substantially gainful occupation. The rationale for any opinion must be provided. 3. Then, the RO or AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before returning the case to the Board for further appellate action. The appellant 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs