Citation Nr: 1322044	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  06-00 165A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for a left knee disability. 

2.  Entitlement to service connection for a back/spine disability. 

3.  Entitlement to service connection for rashes/boils. 

4.  Entitlement to service connection for a jaw disability. 

5.  Entitlement to service connection for a lung disability, to include chronic obstructive pulmonary disorder (COPD), pneumonia, and asthma. 

6.  Entitlement to service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or COPD.

7.  Entitlement to service connection for ischemic heart disease (claimed as a heart condition) as a result of exposure to herbicides, for purposes of entitlement to retroactive benefits.

8.  Entitlement to service connection for cataracts to include as secondary to service-connected diabetes mellitus.

9.  Entitlement to an initial compensable evaluation for left lower extremity peripheral neuropathy for the period prior to January 21, 2011. 

10.  Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy for the period beginning January 21, 2011.

11.  Entitlement to an initial compensable evaluation for right lower extremity peripheral neuropathy for the period prior to January 21, 2011. 

12.  Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period beginning January 21, 2011.

13.  Entitlement to an initial compensable evaluation for tinea pedis and onychomycosis.

14.  Entitlement to an initial compensable evaluation for hypertension. 

15.  Entitlement to an initial compensable evaluation for bilateral eye retinopathy. 

16.  Entitlement to an initial evaluation in excess of 20 percent for peripheral vascular disease, left lower extremity.

17.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

18.  Entitlement to an initial rating in excess of 10 percent for hypothyroidism. 

19.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

James A. DeFrank, Counsel


INTRODUCTION

The Veteran had active service from July 1969 to February 1977. 

These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2003, January 2005, May 2006, August 2007, April 2010, October 2010, September 2011, October 2011, December 2011 and March 2012 rating decisions of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). 

In an April 2010 decision, the RO denied service connection for sleep apnea, to include as secondary to diabetes mellitus and COPD.

In an October 2010 decision, the Board remanded the issues of entitlement to service connection for a lung disability, to include COPD, pneumonia, and asthma, and the issues of entitlement to increased evaluations for bilateral lower extremity peripheral neuropathy, hypertension, bilateral eye retinopathy, and tinea pedis and onychomycosis, for additional development.

In the October 2010 decision, the Board also denied entitlement to service connection for a left knee disability, a back/spine disability, rashes/boils and a jaw disability and denied an initial rating in excess of 20 percent for service-connected diabetes mellitus.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2012 memorandum decision, the Court vacated the Board's decision and remanded these matters to the Board for development and readjudication. 

The Court also determined that the Veteran had raised a claim for TDIU pursuant to Rice v. Shinseki, in which the Court held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  The record in this case indicates that the Veteran has claimed that he is not employable as a result of his PTSD.

In a September 2011 rating decision, the RO denied service connection for ischemic heart disease (claimed as a heart condition) as a result of exposure to herbicides, for purposes of entitlement to retroactive benefits.

In an October 2011 rating decision, the RO granted service connection for PTSD at a 30 percent disability evaluation, effective July 26, 2004, granted service connection for peripheral vascular disease, left lower extremity at a 20 percent evaluation, effective June 2, 2006 and granted entitlement to SMC based on loss of a creative organ, effective June 2, 2006.  The RO also granted service connection for erectile dysfunction at a noncompensable evaluation, effective June 2, 2006 and combined the evaluation with diabetes mellitus, hypertension, bilateral eye retinopathy and tinea pedis and onychomycosis.  The RO continued the 20 percent evaluation for these disabilities.

The October 2011 rating decision also granted a higher disability rating of 10 percent for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy, effective January 21, 2011.  As a higher schedular evaluation for these disabilities is possible, the issues of entitlement to a rating in excess of 10 percent for left and right lower extremity peripheral neuropathy remain before the Board on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).

In a December 2011 rating decision, the RO granted service connection for hypothyroidism at a 10 percent disability evaluation, effective January 10, 2007.

In a March 2012 rating decision, the RO denied entitlement to service connection for cataracts, to include as secondary to his service-connected diabetes mellitus type II disability.

As a final preliminary matter, the Board notes that the claims file reflects that the Veteran was previously represented by the American Legion  (as reflected in an October 2006 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative).  In January 2008, the Veteran filed a VA Form 22a (Appointment of Attorney or Agent as Claimant's Representative) naming Jeany Mark. The Board recognizes the change in representation.

The issues of entitlement to service connection for ischemic heart disease (claimed as a heart condition) as a result of exposure to herbicides, for purposes of entitlement to retroactive benefits; entitlement to service connection for cataracts to include as secondary to service-connected diabetes mellitus; entitlement to service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or COPD; entitlement to an initial evaluation in excess of 20 percent for peripheral vascular disease, left lower extremity; entitlement to an initial rating in excess of 30 percent for PTSD; entitlement to an initial rating in excess of 10 percent for hypothyroidism; entitlement to an initial compensable evaluation for bilateral eye retinopathy and entitlement to 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.  The competent evidence of record does not demonstrate that the Veteran's left knee disability, to include arthritis, is the result of any incident of service. 

2.  The competent evidence of record does not demonstrate that the Veteran's back/spine disability, to include arthritis, is the result of any incident of service. 

3.  The competent evidence of record does not demonstrate that the Veteran has a currently diagnosed skin rash/boil disability. 

4.  The competent evidence of record does not demonstrate that the Veteran has a currently diagnosed jaw disability.

5.  The competent evidence shows that the Veteran's lung disability, to include COPD, manifested first several years after his service separation and is not related to active service.

6.  The Veteran's tinea pedis and onychomycosis comprises less than 1 percent of the total body surface area and 0 percent of the exposed body surface area and does not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs.

7.  Hypertension is manifested by diastolic pressure readings predominantly less than 100 and systolic pressures predominately below 160; historically, diastolic pressure readings have been predominantly less than 100.

8.  For the period prior to January 21, 2011, the Veteran's left lower extremity was neurologically within normal limits.

9.  For the period from January 21, 2011, the Veteran's left lower extremity peripheral neuropathy has been manifested by, at most, mild incomplete paralysis of the sciatic nerve involving the lower extremity; moderate incomplete paralysis of the sciatic nerve of the lower extremity has not been demonstrated.

10.  For the period prior to January 21, 2011, the Veteran's right lower extremity was neurologically within normal limits.

11.  For the period from January 21, 2011, the Veteran's right lower extremity peripheral neuropathy has been manifested by, at most, mild incomplete paralysis of the sciatic nerve involving the lower extremity; moderate incomplete paralysis of the sciatic nerve of the lower extremity has not been demonstrated.


CONCLUSIONS OF LAW

1.  A bilateral knee disability, to include arthritis, was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).

2.  A back/spine disability, to include arthritis, was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 

3.  A skin rash/boils disability was not incurred in or aggravated by active service, to include due to exposure to Agent Orange, nor may it be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307 3.309 (2012). 

4.  A jaw disability was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

5.  A lung disability, to include COPD, pneumonia, and asthma was not incurred in active service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012).

6.  The criteria for an initial compensable rating for tinea pedis and onychomycosis are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7813, 7913 (2012).

7.  The criteria for an initial compensable rating for hypertension are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.21, 4.104, Diagnostic Codes 7101, 7913 (2012). 

8.  For the period prior to January 21, 2011, the criteria for an initial compensable rating for left lower extremity peripheral neuropathy not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012).

9.  For the period from January 21, 2011, the criteria for an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012).

10.  For the period prior to January 21, 2011, the criteria for initial compensable disability evaluation for right lower extremity peripheral neuropathy not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012).

11.  For the period from January 21, 2011, the criteria for an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal.  A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 

With respect to the issue of an increased initial evaluation for service-connected tinea pedis and onychomycosis, hypertension and peripheral neuropathy of the bilateral lower extremities, for initial rating claims or claims for an earlier effective date, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Once a claim for service connection has been substantiated, the filing of a notice of disagreement (NOD) with the rating or the effective date of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dingess v. Nicholson, 19 Vet. App. 473, 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

With respect to the service connection issues on appeal, the RO provided notice to the Veteran in a January 2004 letter, prior to the date of the issuance of the appealed January 2005 rating decision.  The January 2004 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA.  

A June 2008 letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Board finds that any defect with respect to the timing of any VCAA notice letter was harmless error.  Although the June 2008 letter was provided to the Veteran after the initial adjudication, the case was readjudicated thereafter, and the Veteran has not been prejudiced thereby.  The content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  Not only has the Veteran been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. 

With regard to the duty to assist, the claims file contains the Veteran's service treatment records, private and VA treatment records, Social Security Administration records, and reports of VA examinations.  Additionally, the claims file contains the Veteran's statements in support of his claims.  The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. 

The Board notes that the Veteran was not provided with a VA examination and opinion to assess the current nature and etiology of his claimed left knee, back or spine, jaw and rashes/boils disabilities.  However, VA need not conduct an examination with respect to the claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim.  See 38 C.F.R. § 3.159(c) (4).  Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  Simply stated, the standards of McLendon are not met in this case as there is no evidence that he has a currently diagnosed skin rash/boil disability or a currently diagnosed jaw disability.  Additionally, there is no indication that bilateral knee disability or back/spine disability manifested in service or was otherwise related to service.  Thus remand for VA examinations is not necessary. 

Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims.  Essentially, all available evidence that could substantiate the claims has been obtained.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 



I.  Service Connection

Law and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements for certain chronic disabilities such as arthritis is through a demonstration of continuity of symptomatology.  

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. §] 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). 
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

A.  Bilateral Knee Disability, Back/Spine Disability 

The Veteran asserts that service connection is warranted for a bilateral knee disability and a back/spine disability.  As the two claims have similar backgrounds and analysis, they will be addressed together.

With respect to a current disability, the record demonstrates that the Veteran has been diagnosed with bilateral knee patellofemoral syndrome, degenerative joint disease and arthritis, including in the knees, and thoracic spine. 

Initially, the Board notes that in order to establish service connection on a presumptive basis, the Veteran's arthritis must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of service.  In this case, there is no evidence that the Veteran's current arthritis was manifested to a compensable degree within one year of his 1977 separation from service.  Indeed, the first documented diagnosis of arthritis was in 1995.  Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection on a presumptive basis. 

Regarding service connection on a direct basis, with respect to an in-service injury or disease, the Veteran's service treatment records do not demonstrate that he ever complained of, or was treated for a knee, back, or spine disability, and/or arthritis.  Nevertheless, the Board notes that in a March 2005 statement, the Veteran stated that he injured his back in July/August 1969 while at Ft. Dix, where he was treated at the hospital and placed on a medical hold and profile.  He also indicated that he injured his knee in September 1969 at Ft. Dix, where he was again treated at the hospital and placed on a medical hold and profile.  However, there is no other evidence of record that supports the Veteran's contentions.  In this regard, the Veteran's January 1977 separation examination report shows that he denied a history of arthritis, rheumatism, or bursitis, or recurrent back pain.  The Veteran also denied ever having been a patient in any type of hospital or having consulted or been treated by clinics, physicians or healers, or other practitioners within the past five years for other than minor illnesses.  The examiner reported that the Veteran's upper and lower extremities, feet, and spine were normal.  Further, although the record demonstrates that the Veteran served in Vietnam in 1970, he has not contended, and the record does not demonstrate, that his claimed injuries were incurred as the result of his participation in combat.  As noted above, the Veteran indicated that he was injured while stationed at Ft. Dix, New Jersey.  Therefore, in the absence of any evidence that the purported incident occurred during actual combat, the Board finds that the relaxed burden regarding an in-service incurrence of any injury is not applicable, and the Veteran's statements, alone, regarding the injury to his knees and back are not sufficient.  See 38 U.S.C.A. § 1154. 

Moreover, no competent clinical evidence of record establishes that the Veteran's current knee and back disabilities, initially demonstrated by the record years after service, are etiologically related to any incident of service.  Therefore, in the absence of any reliable evidence that the Veteran's current knee and back disabilities are etiologically related to service and in the absence of demonstration of continuity of symptomatology, the Board finds that the Veteran's initial demonstration of such disabilities years after his discharge from service, to be too remote from service to be reasonably related to service.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). 

In adjudicating a claim, including as to continuity of symptomatology, the Board must assess the competence and credibility of the veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Although the Veteran asserts that his current knee and back disabilities are related to service, he is not competent to provide an opinion requiring medical knowledge, such as a question of medical causation.  Lay persons are generally not competent to opine as to medical etiology or render medical opinions.  See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to indentify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer.").  That is, the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he injured his knee and back in service and has experienced knee and back pain since service.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). 

Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  However, such lack of contemporaneous evidence is for consideration in determining credibility.  In this regard, the Board again notes that the record is devoid of objective evidence of knee or back disability until years after service.  Moreover, as noted above, the Veteran, on July 1977 separation examination denied ever having been a patient in any type of hospital or having consulted or been treated by clinics, physicians or healers, or other practitioners within the past five years for other than minor illnesses, which the Board notes contrary to the statements made by him in March 2005.  As such, the Board finds that any assertions by the Veteran as to continuity of symptomatology of these disabilities since service to be less than credible. Therefore, in the absence of any reliable evidence that demonstrates that the Veteran's bilateral knee and back disabilities are related to any incident of service and in the absence of demonstration of continuity of symptomatology of these disabilities since service, the Board finds that the negative evidence of record is of greater probative value than the Veteran's statements in support of his claims.  As a result, the Board finds that the Veteran is not entitled to a grant of service connection on a nonpresumptive direct-incurrence basis for his current bilateral knee and back disabilities. 

In conclusion, for all of the reasons set forth above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for bilateral knee and disabilities, and it must be denied.  The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. 

B.  Skin Rash/Boils, to include as secondary to Agent Orange exposure 

As an initial matter, the Board observes that the Veteran served in the Republic of Vietnam.  Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307. 

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). 

If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and subacute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307, 3.309(e).  The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; Type II diabetes; Non-Hodgkin's lymphoma; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; respiratory cancers; prostate cancer; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  The term "soft-tissue sarcoma" includes adult fibrosarcoma, dermatofibrosarcoma protuberans, malignant fibrous histiocytoma, liposarcoma; leiomyosarcoma; epithelioid leiomyosarcoma (malignant leiomyoblastoma); rhabdomyosarcoma; ectomesenchymoma; angiosarcoma (hemangiosarcoma and lymphangiosarcoma); proliferating (systemic) angioendotheliomatosis; malignant glomus tumor; malignant hemangiopericytoma; synovial sarcoma (malignant synovioma); malignant giant cell tumor of tendon sheath; malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas; malignant mesenchymoma; malignant granular cell tumor; alveolar soft part sarcoma; epithelioid sarcoma; clear cell sarcoma of tendons and aponeuroses; extraskeletal Ewing's sarcoma; congenital and infantile fibrosarcoma; malignant ganglioneuroma; and amyotrophic lateral sclerosis (ALS).  38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318.

In order to establish service connection by presumption, based on herbicide exposure, a disease listed above (see 38 C.F.R. § 3.309(e) ) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.  See 38 C.F.R. § 3.307(a)(6)(ii). 

Even if the statutory presumptions are inapplicable, the United States Court of Appeals for the Federal Circuit  (Federal Circuit) has held that the Veterans Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 

The Veteran asserts that service connection is warranted for a skin rash and boils.  At the outset, the Board notes that the Veteran has contended that he currently has a skin disorder that is related to herbicide exposure in service.  It is not disputed that it is presumed that the Veteran was exposed during his service in Vietnam to certain herbicide agents, including Agent Orange.  However, the competent clinical evidence of record does not show that the Veteran has a skin disability that is shown to be associated with Agent Orange exposure.  The list of diseases that VA has associated with Agent Orange exposure does include several disabilities pertaining to the skin, including porphyria cutanea tarda, chloracne, and other acneform consistent with chloracne.  However, the medical evidence of record does not show that the Veteran has ever been diagnosed with one of those skin disorders.  Therefore, the Board finds that the Veteran is not entitled to service connection on the presumptive basis of herbicide exposure. 

In addition, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a skin disability.  Indeed, on his January 1977 separation report of medical examination shows that the Veteran denied having a history of skin disease.  Likewise, on the corresponding separation report of medical examination, the examiner indicated that the Veteran's skin was normal and the examiner from such examination reported that the Veteran's skin and lymphatics were normal.  Moreover, the record is devoid of evidence that the Veteran has complained of, sought treatment for, or was diagnosed with any current skin disability, other than tinea pedis and onychomycosis, for which he is already service-connected as a process of his service-connected diabetes mellitus.  

Notably, on VA examination in January 2011for the Veteran's service-connected tinea pedis and onychomycosis disabilities, the VA examiner indicated that the Veteran underwent a normal dermatological examination.  A June 2012 VA treatment report also noted that the Veteran denied any rashes, lesions or skin changes.

As such, the Veteran has not been shown to have a current diagnosis of a skin rash and/or boils. 

Therefore, as the evidence of record does not demonstrate that the Veteran has a currently diagnosed skin rash or boils disability, the Board concludes that an award of service connection is not justified.  Support for this conclusion is found in Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) where the Court found that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability and in the absence of proof of a present disability there can be no valid claim.  Thus, although the Veteran asserts that he has a current skin rash or boils disability that is related to service, the negative evidence of record is of greater probative value than his statements in support of his claim.  Therefore, as the competent evidence of record fails to establish that the Veteran has a current skin rash or boil disability that is related to his active military service, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a skin rash or boils The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. 

C.  Jaw Disability 

The Veteran asserts that service connection is warranted for a jaw disability. In terms of an in-service injury or disease, the Veteran's service treatment records are silent for complaints of, or treatment for, a jaw disability.  

With respect to a current disability, an October 2003 VA outpatient treatment record shows that the Veteran reported that sometimes his jaw locked.  However, there is no evidence that such symptomatology has been attributed to a diagnosed disability. 

Therefore, as the evidence of record does not demonstrate that the Veteran has a currently diagnosed jaw disability, the Board concludes that an award of service connection is not justified.  Support for this conclusion is found in Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) where the Court found that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability and in the absence of proof of a present disability there can be no valid claim.  Thus, although the Veteran asserts that he has a current jaw disability that is related to service, the negative evidence of record is of greater probative value than his statements in support of his claim.  Therefore, as the competent evidence of record fails to establish that the Veteran has a current left leg disability that is related to his active military service, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a jaw disability.  The Board has considered the doctrine of giving the benefit of the doubt to the veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2012), but does not find that the evidence is of such approximate balance as to warrant its application. 

D.  A lung disability, to include COPD, pneumonia, and asthma.

The Veteran's service treatment records reflect that he had an acute upper respiratory infection in October 1969.  The Veteran's December 1969 pre-induction examination revealed a normal clinical evaluation of the chest.  His January 1976 separation examination revealed a normal clinical evaluation of the chest.

A May 2004 VA treatment note reported that the Veteran had a history of mold exposure in his home at Cape Cod.  The provider noted that the Veteran had a work-up for respiratory problems in October 2001 and four molds were identified.  The diagnosis was moderate COPD.

An August 2006 private pulmonary consultation report noted the Veteran's report that he had been treated for pneumonia and breathing problems while in service.  The diagnosis was asthma/COPD.  The physician opined that "it was certainly possible" that the Veteran's pulmonary problems stemmed from the infection for which he was treated for while in the service.

Per the October 2010 Board remand instructions, the Veteran underwent a VA examination in January 2011.  He reported a history of COPD which was diagnosed in 2004.  He also indicated that he used to smoke a pack of cigarettes a day for 15 years and quit smoking about 15 years previously.  He also reported being hospitalized for pneumonia while in the service in 1969.  He denied any other episodes involving a lung condition in the military.  He was discharged in 1977 and did not have any treatments for a lung condition until 1995 when he was diagnosed with reactive airway disease.  The diagnosis was COPD.  The examiner noted that the service treatment records showed that the Veteran was treated for an acute upper respiratory infection in the military.  He noted that an upper respiratory infection is an acute condition that usually resolved with treatments of antibiotics.  He indicated that there was no diagnosis of COPD in the military and there was evidence that the Veteran was not treated for a lung condition until 1995 when he was diagnosed with reactive airway disease.  He further noted that there was no evidence that the Veteran was treated for a lung condition within 10 years of discharge from the military.  He pointed out that smoking was also an independent risk factor for COPD and that the Veteran smoked 1 pack a day for 15 years.  The examiner concluded that it was less likely than not that the Veteran's lung condition was secondary to his treatments in the military.

When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a lung disability, to include COPD, pneumonia, and asthma is not warranted.

There is a current diagnosis of COPD; hence, the first element of service connection is satisfied.  However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000).

The Board notes that the Veteran's service treatment records demonstrate that the Veteran had an acute upper respiratory infection in October 1969.

The service treatment records however, are negative for any or diagnoses of any chronic lung disorders as the respiratory complaints were medically addressed in service, and appear to have been of an acute and transitory nature.  Significantly, the January 1976 separation examination revealed a normal clinical evaluation of the chest.

While the Veteran had in-service respiratory complaints due to an acute upper respiratory infection in October 1969, there are no clinical findings or diagnoses of any chronic respiratory disability until many years after service.  The first post-service evidence of a chronic lung disability was in 1995 when the Veteran was diagnosed with reactive airway disease.  

There are conflicting opinions as to whether the Veteran's lung disability is related to his active service.  As noted above, in an August 2006 letter, a private physician found that "it was certainly possible" that the Veteran's pulmonary problems have stemmed from the infection for which he was treated for while in the service.

Conversely, the January 2011 VA examiner specifically found that it was less likely than not that the Veteran's lung condition was secondary to his treatments in the military.

The Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached.  The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467 (1993).

Greater weight may be placed on one physician's opinion over another depending on factors such as 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 (1994).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion.  Sklar v. Brown, 5 Vet. App. 140 (1993). 

In this instance, the Board finds that the January 2011 VA examiner's opinion to be the most probative.  Regarding the August 2006 private physician's opinion that "it was certainly possible" that the Veteran's pulmonary problems have stemmed from the infection for which he was treated for while in the service, the Board notes that the fact that this opinion is relatively speculative in nature limits its probative value.  An examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature.  See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship).  See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). 

In contrast, the January 2011 VA examiner provided an unequivocal and detailed medical opinion supported by a pertinent rationale based upon a review of the Veteran's claims file and an examination of the Veteran, when concluding that it was less likely than not that the Veteran's lung condition was secondary to his treatments in the military.  Significantly, the examiner also noted that the more likely cause of the Veteran's current COPD was smoking as the Veteran had previously smoked a pack of cigarettes a day for 15 years and smoking was also an independent risk factor for COPD.  Unlike the August 2006 private physician, the January 2011 VA examiner also addressed the lapse in time between the Veteran's 1969 in-service acute upper respiratory infection and his receiving treatment in 1995 for a lung disability.  The examiner noted that from 1969 to 1995, the medical records were silent as to respiratory complaints.

For these reasons the Board finds the January 2011 VA examiner's assessment to be the most probative.  

Given that the most probative opinion is against a finding of a relationship between a lung disability and service, the Board finds that service connection is not warranted.


E.  All Disabilities

To the extent that the Veteran contends that a medical relationship exists between his current claimed disabilities and service, the Board again acknowledges that the Veteran is competent to testify as to his observations.  Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau).  In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's claimed left knee disability, back/spine disability, rashes/boils,  jaw disability and lung disability, to be complex in nature.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

In this instance, therefore, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between his current claimed left knee disability, back/spine disability  and lung disability and service, and the presence of a diagnosis of rashes/boils and a jaw disability.  As such, the Board ascribes far more weight to the conclusions of the VA examiner who concluded that the Veteran's current left knee disability, back/spine disability and lung disability were not related to service and that the Veteran did not have current rashes/boils and jaw disabilities .  See Jandreau, 492 F.3d at 1377.

As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). 



II.  Increased Ratings

Law and Regulations

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). 

Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012).  Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing her claim when her disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).




A.  Entitlement to an initial compensable evaluation for tinea pedis and onychomycosis and hypertension.

In a May 2006 rating decision, the RO, in part, granted service connection for diabetes mellitus, type II, with hypertension, retinopathy, tinea pedis and onychomycosis associated with herbicide exposure at a 20 percent disability evaluation, effective October 24, 2005.

The Board's October 2010 remand however, recharacterized the issues as entitlement to an initial evaluation in excess of 20 percent for diabetes mellitus type II and entitlement to an initial compensable evaluation for tinea pedis and onychomycosis.  In the remand, the Board denied the Veteran's claim for an initial rating in excess of 20 percent for diabetes mellitus and remanded the issues of entitlement to an initial compensable evaluation for tinea pedis and onychomycosis, hypertension and bilateral eye retinopathy for additional development.  As noted above, the Veteran appealed the denial of his claim for an initial rating in excess of 20 percent for diabetes mellitus to the Court.

As noted above, in an October 2011 rating decision, the RO granted service connection for erectile dysfunction at a noncompensable evaluation, effective June 2, 2006 and combined the evaluation with diabetes mellitus, hypertension, bilateral eye retinopathy and tinea pedis and onychomycosis.  The RO continued the 20 percent evaluation for these disabilities.

In its June 2012 memorandum decision, the Court determined that the appellant failed to demonstrate that the Board should have remanded his claim for a higher disability rating for diabetes mellitus.

The Board notes that while the Court determined that the Board's October 2010 denial of the Veteran's claim for an initial rating in excess of 20 percent for diabetes mellitus need not be disturbed, the October 2010 Board decision also remanded the issues of entitlement to an initial compensable evaluation for tinea pedis and onychomycosis, hypertension and bilateral eye retinopathy for additional development.  Accordingly, the Board will now address these issues below.
1.  Tinea pedis and onychomycosis

Factual Background and Analysis

The Board observes that Note 1 of Diagnostic Code 7913 provides that compensable complications of diabetes will be rated separately and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  See 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1) (2012). 

The criteria for evaluating skin conditions under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through Diagnostic Code 7805, were revised effective October 23, 2008.  They were specifically limited to claims filed on or after October 23, 2008.  Here, the Veteran's claim (from which the present appeal stems) was received in 2006.  Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008, must be applied.

The Veteran's tinea pedis and onychomycosis is rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813.  Under this code, tinea pedis is to be rated based on disfigurement of the head, face or neck, as scars, or as dermatitis depending on the predominant disability. 

Under Diagnostic Code 7806, a noncompensable rating is warranted for dermatitis affecting less than 5 percent of the entire body, or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months.  A 10 percent evaluation is warranted when at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas are affected; or, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period.  A 30 percent evaluation is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or, when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of 6 weeks or more, but not constantly, during the past 12-month period.  A 60 percent evaluation is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or, when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2012).

The Veteran underwent a VA examination in February 2006.  It was noted that there were signs of skin disease located at the bottom of his feet with exfoliation, crusting, induration of less than 6 square inches, hyperpigmentation of less than 6 square inches and abnormal texture of more than 6 square inches.  There was no ulceration, tissue loss, inflexibility, hypopigmentation and limitation of motion.  Skin lesion was 0 percent of the exposed area.  The skin lesion coverage relative to the whole body was 2 percent.

The Veteran underwent a VA examination in April 2006.  The examiner noted that there were no signs of skin disease present.

Per the October 2010 Board remand instructions, the Veteran underwent a VA examination in November 2011.  The Veteran reported that his onychomycosis and tine pedis were incidental findings that were discovered when he was seeing a physician for an unrelated complaint years ago.  He reported being treated with creams but with no pills.  He denied having received treatment over the past 12 months.  The examiner indicated that the percentage of the exposed area was 0 percent and the percentage of the entire body affected was 0 percent.  Scarring and disfigurement were not present.  Ulceration, exfoliation or crusting was not present.  Acne or chloracne was not present.  There was no disfiguring skin condition of the head, neck or face.  There was no diagnosis as the examiner indicated that examination was normal.

The Board finds no objective evidence that would warrant a compensable rating for the Veteran's tinea pedis and onychomycosis as the findings are consistent with the initial noncompensable rating assigned for tinea pedis and onychomycosis. 

A higher, compensable rating is not warranted because service-connected tinea pedis and onychomycosis are not shown to comprise at least 5 percent of the entire body, or at least 5 percent of exposed areas affected.

Additionally, the evidence of record does not show that he has required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for his tinea pedis and onychomycosis for a total duration of less than six weeks during the past 12-month period to warrant a compensable 10 percent rating.

Therefore, the preponderance of the evidence is against the Veteran's claim that he is entitled to an initial compensable evaluation for tinea pedis and onychomycosis.  See 38 U.S.C.A. § 5107(a) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.  There is not an approximate balance of evidence.  See generally Gilbert, supra; Ortiz v. Principi, 274 F.3d 1361   (Fed. Cir. 2001).  Assignment of staged ratings has been considered and is not for application.  Hart, supra.

2.  Hypertension

Factual Background and Analysis

As mentioned above, the Veteran's hypertension has been evaluated as 0 percent disabling and incorporated in the 20 percent evaluation for diabetes mellitus as part of the diabetic process. 

Hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101.  For purposes of rating under this section, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  A rating of 10 percent requires diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control.  A rating of 20 percent requires diastolic blood pressure predominantly 110 or more, or systolic blood pressure predominantly 200 or more.  A rating of 40 percent requires diastolic pressure predominantly 120 or more.  A rating of 60 percent requires diastolic blood pressure predominantly 130 or more. 

The Veteran underwent a VA examination in February 2006.  The examiner noted that the Veteran's hypertension had existed since 2004 and was secondary to his diabetes mellitus.  He indicated that the Veteran had been on the medication Lisinopril.  Blood pressure readings were 140/80, 138/82 and 140/82.  It was noted that the Veteran fatigued easily.

The Veteran underwent a VA examination in April 2006.  The examiner noted that the Veteran had hypertension since 1994 and he was on the medications Lisinopril and HCTZ.  His functional impairment was noted to be easy fatigue.  His blood pressure readings were 152/88, 148/84 and 150/84.

The Veteran underwent a VA examination in January 2007.  Blood pressure readings were 130/76, 130/72 and 128/78.

The Veteran underwent a VA examination in June 2007.  A blood pressure reading was 127/75.

The Veteran underwent a VA examination in January 2011.  He reported that he was diagnosed with hypertension around 2004.  He indicated that he was currently taking hydrochlorothiazide/lisinopril for the management of hypertension.  He reported that his hypertensive condition did not affect his activities of daily living, recreational activities or employment.  His blood pressure readings were 139/93, 148/100 and 144/94.

Applying the rating criteria to the facts of this case, the Board finds that the criteria for an initial compensable rating for hypertension have not been met for any time during the applicable appeal period.  At no time has the Veteran's systolic blood pressure been 160 or more.  Furthermore, although there was one instance on VA examination in January 2011 where the Veteran's diastolic blood pressure reading was 100, his diastolic blood pressure has been predominantly less than 100.  The Board notes that the Veteran has been on medication for hypertension, but the evidence does not reflect a history of diastolic pressure predominantly 100 or more.  As there is no showing of diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more, a compensable, 10 percent rating for hypertension is not warranted. 

The Board points out that the rating schedule authorizes the assignment of a 0 percent (noncompensable) evaluation in every instance in which the rating schedule does not provide such an evaluation and the requirement for a compensable evaluation are not met.  38 C.F.R. § 4.31.  In this case, however, the Veteran's noncompensable rating for hypertension has been incorporated in the 20 percent evaluation for diabetes mellitus under Diagnostic Code 7913.  The criteria for evaluating diabetes mellitus provide that noncompensable complications are to be considered part of the diabetic process under Diagnose Code 7913.  38 C.F.R. 
§ 4.120, Diagnostic Code 7913, Note 1 (2012).  Therefore, since the Veteran's hypertension is noncompensable and considered part of the diabetic process, the Board finds that it is appropriately included in the 20 percent evaluation for diabetes mellitus under Diagnostic Code 7913.  In this regard, the Board points out that VA examiners had determined that the Veteran's hypertension was due to diabetes.

B.  Entitlement to an initial compensable evaluation for right and left lower extremity peripheral neuropathy for the period prior to January 21, 2011 and an initial rating in excess of 10 percent for left and right lower extremity peripheral neuropathy for the period beginning January 21, 2011.

The Veteran's right and left lower extremity peripheral neuropathy are rated under Diagnostic Code 8599-8520.  38 C.F.R. § 4.124a.  The hyphenated diagnostic codes in this case indicate that an unlisted peripheral nerve disorder, under Diagnostic Code 8599, was the service-connected disorder, and paralysis of the sciatic nerve, under Diagnostic Code 8520, were residual conditions.  38 C.F.R. § 4.27 (unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99").

Under Diagnostic Code 8520, a 10 percent evaluation is warranted for incomplete paralysis of the sciatic nerve to a mild degree.  A 20 percent evaluation is warranted for incomplete paralysis of the sciatic nerve to a moderate degree.  A 40 percent rating is warranted for incomplete paralysis of the sciatic nerve to a moderately-severe degree.  A 60 percent rating is warranted for incomplete paralysis of the sciatic nerve to a severe degree with marked muscular atrophy.  When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.  38 C.F.R. § 4.124a, Diagnostic Code 8520.

With respect to diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis for a particular nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  When the involvement is bilateral, the ratings should be combined with application of the bilateral factor.  38 C.F.R. § 4.124a.

The Veteran underwent a VA examination in February 2006.  The peripheral nerve examination was within normal limits.  Neurological examination of the lower extremities was within normal limits.

The Veteran underwent a VA examination in April 2006.  The peripheral nerve examination was within normal limits.  Neurological examination of the lower extremities was within normal limits.

Per the October 2010 Board remand instructions, the Veteran underwent a VA examination in January 2011.  He reported cold sensitization in the bilateral lower extremities as he was extremely sensitive to cold.  He reported no numbness or tingling of the bilateral lower extremities.  He denied burning pain.  He had no pins and needles sensation.  He had no flare-ups of symptoms.  He had numbness in the bilateral feet.  He indicated that the disability did not affect his activities of daily living, recreational activities or employment.  On neurological examination, his motor strength was 5/5 in the lower extremities with no evidence of muscle atrophy.  Sensory was decreased on the plantar aspect of the bilateral feet.  He was unable to elicit an Achilles reflex on the right lower extremity and his Achilles reflex was 1+ on the left foot.  On physical examination, his gait and posture were normal.  The diagnosis was peripheral neuropathy of the bilateral lower extremities which was as likely as not secondary to diabetes.

Regarding the period prior to January 21, 2011, the evidence does not show symptoms consistent with mild incomplete paralysis of either sciatic nerve.  On the contrary, the February 2006 and April 2006 VA examination reports noted that neurological examination of the lower extremities was within normal limits.  The Board therefore concludes that symptoms consistent with mild incomplete paralysis of the sciatic nerve are not shown prior to January 21, 2011.  Accordingly, the criteria for an initial compensable rating for this period are not met. 

With respect to the period from January 21, 2011, the Board notes that at no time during the appeal has there been loss of reflexes or muscle atrophy and the January 2011 VA examiner did not find significant neurological deficits.  The January 2011 VA examination demonstrated numbness in the bilateral feet as sensory was decreased on the plantar aspect of the bilateral feet.  However, this did not affect his activities of daily living, recreational activities or employment.  These findings are consistent with no more than slight incomplete paralysis of the sciatic nerve.  The Board finds the overall evidence is insufficient to warrant more than the currently assigned 10 percent disability rating from January 21, 2011.  No more than wholly sensory involvement of each lower extremity has been demonstrated.

A clear preponderance of the evidence is against higher disability ratings both prior to, and as of January 21, 2011, as the Veteran's complaints are not supported by adequate pathology.  Again, the objective clinical findings consistently fail to show that each of the disabilities meets the criteria for a higher evaluation.  Hence, the Board must conclude that those findings outweigh his lay assertions regarding severity.


C.  Extraschedular Considerations

The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected hypertension, tinea pedis and onychomycosis and right and left lower extremity peripheral neuropathy disabilities.  See Bagwell v. Brown, 9 Vet. App. 157 (1966).  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.21(b) (1) (2012). 

Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then 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 rating. 

The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful.  There is no evidence in the medical records of an exceptional or unusual clinical picture.  The record demonstrates that the Veteran has not required hospitalization as a result of his hypertension, tinea pedis and onychomycosis, and right and left lower extremity peripheral neuropathy disabilities.  Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned.  Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted.


ORDER

Entitlement to service connection for left knee disability is denied. 

Entitlement to service connection for a back/spine disability is denied. 

Entitlement to service connection for rashes/boils is denied. 

Entitlement to service connection for a jaw disability is denied. 

Entitlement to service connection for a lung disability, to include COPD, pneumonia, and asthma is denied.

Entitlement to an initial compensable evaluation for tinea pedis and onychomycosis is denied.

Entitlement to an initial compensable evaluation for hypertension is denied.

Entitlement to an initial compensable evaluation for left lower extremity peripheral neuropathy for the period prior to January 21, 2011 is denied. 

Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy for the period beginning January 21, 2011 is denied.

Entitlement to an initial compensable evaluation for right lower extremity peripheral neuropathy for the period prior to January 21, 2011 is denied. 

Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy for the period beginning January 21, 2011 is denied.


REMAND

The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. 

One of the matters the Board must address is which issue or issues are properly before it at this time.  Under the provisions of 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran.  In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203.

As noted above, in a September 2011 rating decision, the RO denied service connection for ischemic heart disease.  An October 2011 rating decision granted service connection for PTSD and granted service connection for peripheral vascular disease, left lower extremity.  A December 2011 rating decision granted service connection for hypothyroidism and a March 2012 rating decision denied entitlement to service connection for cataracts, to include as secondary to his service-connected diabetes mellitus type II disability.
 
In an October 2012 letter, the RO indicated that it had received the Veteran's written disagreement with the September 2011 rating decision.  In an April 2013 letter, the RO indicated that it had received the Veteran's written disagreement with the October 2011, December 2011 and March 2012 rating decisions.

While the Veteran expressed disagreement with the September 2011, October 2011, December 2011 and March 2012 rating decisions, it appears that no subsequent statement of the case was ever issued with regard to these issues.  Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that these issues remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26.  In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal.  The Board's actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. 

Regarding the Veteran's claim for service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and/or COPD, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002).  The evidence of a link between current disability and service must be competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).

The threshold for finding a link between current disability and disease or injury in service is low.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions.  However, it is not free to substitute its own judgment for that of such an expert.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 

The Board notes that 38 C.F.R. § 3.310(a) permits service connection not only for disability caused by 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 (1995).

A November 2011 Independent Medical Opinion determined that the while sleep apnea had been shown to contribute to the formation of the metabolic condition of diabetes, diabetes as a metabolic condition had not shown to be a causal factor for sleep apnea.

However, the Independent Medical Examiner did not address whether the Veteran's service-connected diabetes mellitus has aggravated his sleep apnea.  See 38 C.F.R. § 3.310; See Allen, supra.  

As such the Board finds that the evidence currently of record is insufficient to resolve the claim for service connection for sleep apnea to include as secondary to service-connected diabetes mellitus and that further medical examination in connection with this claim is warranted.

Regarding the Veteran's claim for entitlement to an initial compensable evaluation for bilateral eye retinopathy, as noted above, while the Court in its June 2012 Memorandum decision determined that the Board's October 2010 denial of the Veteran's claim for an initial rating in excess of 20 percent for diabetes mellitus was valid, the October 2010 decision also remanded the issues of entitlement to an initial compensable evaluation for tinea pedis and onychomycosis, hypertension and bilateral eye retinopathy for additional development.  Accordingly, the Board must address the issue of entitlement to an initial compensable evaluation for bilateral eye retinopathy.

The Board notes that subsequent to the originating agency's most recent consideration of this claim, additional pertinent treatment records were added to the electronic record (Virtual VA) which assessed the current severity of the Veteran's service-connected bilateral eye retinopathy.  The Veteran has not waived his right to have this evidence initially considered by the originating agency.  

Regarding the Veteran's claim for a TDIU, the Board notes that further development and adjudication of the Veteran's increased rating and service connection claims could have an impact upon the claim for a TDIU; thus, the claim for a TDIU is inextricably intertwined with the claim being developed.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  As appellate consideration of the claim for a TDIU would, thus, be premature at this juncture, remand of this matter also is warranted. 

Additionally, in TDIU claims, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work.  Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2012).  A review of the claims file does not show that such an opinion has been obtained with respect to the TDIU claim.  Notably, in a January 2013 letter, a private physician opined that the Veteran's service-connected PTSD rendered him unemployable.   Accordingly, a VA examination-based on consideration of the Veteran's documented medical history and assertions, and supported by fully stated rationale- is warranted in order to obtain an opinion concerning the Veteran's employability.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  

Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to service connection for ischemic heart disease (claimed as a heart condition) as a result of exposure to herbicides, for purposes of entitlement to retroactive benefits, entitlement to service connection for cataracts to include as secondary to service-connected diabetes mellitus, entitlement to an initial evaluation in excess of 20 percent for peripheral vascular disease, left lower extremity, entitlement to an initial rating in excess of 30 percent for PTSD, and entitlement to an initial rating in excess of 10 percent for hypothyroidism, including citation to all relevant law and regulation pertinent to these claims.  The Veteran must be advised of the time limit for filing a substantive appeal.  38 C.F.R. § 20.302(b).  Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order.

3.  The Veteran should be provided an examination by an appropriate VA physician to evaluate the etiology of any his sleep apnea disability.  Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea disability is proximately due to service-connected diabetes mellitus, or in the alternative, whether it has been permanently aggravated beyond its natural progression by the service-connected diabetes mellitus disability.  All indicated tests and studies are to be performed.  Prior to the examination, the claims folder must be made available to the physician for review of the case.  

Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles.  A detailed rationale for any opinion expressed should be provided.  

4.  The Veteran should be afforded a VA examination by a medical provider with appropriate expertise to determine the impact of the service-connected disabilities on the Veteran's employability.  The claims file must be made available for review by the examiner should note such review in the report.

The examiner should determine whether it is at least as likely as not that the Veteran's service-connected disabilities are sufficiently severe, by themselves, to render him unable to secure and follow a substantially gainful occupation without regard to his nonservice-connected disabilities, or his age.  

The examiner should provide the rationale for all opinions expressed.  

5.  Thereafter, readjudicate the claims.  If any determination remains unfavorable to the Veteran, issue a supplemental statement of the case before returning the case to the Board, if otherwise in order.

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).

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).



______________________________________________
J.K. BARONE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs