Citation Nr: 1324830 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 08-25 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a separate evaluation for cardiovascular complications of diabetes mellitus. 2. Entitlement to service connection for an upper gastric disability, claimed as injury of the esophagus. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1969. He had additional service while in the Reserves from 1980 to 1996. This appeal is before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine, which, in pertinent part, assigned an initial 20 percent evaluation for diabetes mellitus and denied service connection for disability claimed as injury of the esophagus. Jurisdiction over the case was subsequently transferred to the RO in Detroit, Michigan. When the case was before the Board in December 2012, the Board denied the appeal for a higher initial rating for diabetes mellitus. Although the Veteran had never claimed that he had cardiovascular complications of diabetes mellitus, the Board determined the issue of whether a separate rating was warranted for cardiovascular complications of diabetes mellitus was reasonably raised by the record. That issue and the issue of entitlement to service connection for an upper gastric disability, claimed as injury of the esophagus, were remanded for further development. The case is once again before the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issue of entitlement to service connection for an upper gastric disability, claimed as injury of the esophagus, is addressed in the REMAND following the ORDER section of this decision. FINDING OF FACT No cardiovascular complications of diabetes mellitus, type II, have been present during the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to a separate evaluation for cardiovascular complications of diabetes mellitus have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in October 2006 and February 2013. Although he was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also concludes VA's duty to assist has been satisfied. Service treatment records, personnel records, VA outpatient treatment records and identified private treatment records have been obtained. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In addition, pursuant to the Board's remand directive, a VA medical opinion was obtained in February 2013. The physician based the opinion upon a review of the Veteran's pertinent history and following an interview of the Veteran. The examiner did not complete diagnostic testing, but explained why such was not deemed necessary. Specifically, the examiner found no evidence of a current heart disease and the Veteran himself denied having heart disease or even having claimed service connection for heart disease. For these reasons, the Board finds the February 2013 opinion sufficient. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Factual Background and Analysis The Board is not in this decision deciding whether service connection is warranted for cardiovascular disability in general. For instance, the Board notes that the Veteran's claim for service connection for hypertension was denied in an unappealed rating decision issued in April 2010 because the evidence failed to show that the disability was related to service. As mentioned above, the Veteran has not actually claimed that he has cardiovascular complications of his diabetes. Based upon some indication in the evidence of record that the Veteran has cardiovascular complications of diabetes, the Board considered the question of whether the Veteran has such complications to be part of the appealed issue of entitlement to a higher initial rating for the diabetes. Because the evidence of record suggested that the Veteran possibly had cardiovascular complications of diabetes, the Board previously remanded this claim for a VA medical opinion addressing whether the Veteran has such complications. The Veteran was afforded a VA examination in February 2013. The examiner reviewed the record, but did not actually complete any diagnostic testing. Rather, the examiner indicated the Veteran himself denied having a heart disorder and did not claim service-connection for a heart disorder. The examiner stated that the review of the record disclosed no documentation that the Veteran had a heart disorder. In fact, the examiner noted a March 2002 progress note indicating the Veteran was evaluated by a cardiologist and cardiac cath was normal. In short, the Veteran does not contend and the evidence does not show that cardiovascular complications of diabetes have been present at any time during the pendency of this claim. Accordingly, a separate evaluation for such complications is not in order. ORDER Entitlement to a separate evaluation for cardiovascular complications of diabetes mellitus is denied. REMAND In various statements, such as one in May 1984 and another in September 2007, the Veteran indicated that he injured his throat during his service in Vietnam swallowing large Malaria pills and has had throat problems ever since. On his May 2006 claim, he indicated that he was first treated for a throat injury during reserve duty in 1984. The claim was previously remanded for further development, to include development to verify any periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). The claim was also remanded to afford the Veteran an appropriate VA examination. The Veteran has confirmed active duty service, to include service in Vietnam, from October 1967 to June 1969. Additionally, the Veteran enlisted in the United States Army Reserves and worked as a military policeman for various periods of ACDUTRA and INACDUTRA from 1980 to 1996. These various periods include ACDUTRA from November 10, 1984, to November 12, 1984. Service treatment records confirm in February 1967, the Veteran was seen for dizziness of four to five days duration. At that time, the physician noted a "mild pharyngeal injury." A diagnosis was deferred pending test results. It does not appear the Veteran ever sought follow-up treatment. The remaining treatment records for both active duty and reserve duty contain no further evidence supportive of the Veteran's claim. After the extended period of service, the Veteran sought treatment for difficulty swallowing in June 1984, nearly two decades after the 1967 injury. At that time, the VA treatment record notes a "history of dysphaglia since 1967." The Veteran complained of food sticking in his throat. The report also notes an "esophageal dilation" in 1981. He was diagnosed with dysphaglia, cause undetermined, in July 1984, and "esophageal cervical web" in September 1984. He underwent direct laryngoscopy, esophagoscopy, and esophageal dilatation in December 1984. More recent treatment records, from 2002 to 2008, indicate a diagnosis of gastroesophageal reflux disease (GERD). The Veteran was afforded a VA examination in February 2013 as directed by the Board's prior remand. Unfortunately, the Board finds the report of this examination to be inadequate. The examiner diagnosed the Veteran with GERD and esophageal stricture opining that the diagnoses are less likely than not the result of his military service. In rendering this opinion, the examiner found no documentation of an esophageal injury or symptoms consistent with these conditions during his active duty. Both of these factual assumptions are inaccurate. As noted above, a February 1967 service treatment record notes "mild pharyngeal injury." Although no follow-up treatment, complaints, or diagnoses are noted during his military service, the records clearly show some "documentation" of in-service injury. The examiner, moreover, did not consider the Veteran's service in the Reserves. The evidence adequately establishes that there were continuous symptoms of difficulty swallowing and food "sticking" through his service in the Reserves at least from the 1980s. At those times, VA physicians indicated a history of dysphaglia since 1967. The examiner did not note or reconcile any of these facts. Accordingly, an addendum opinion is required. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records, pertinent to the Veteran's claim. 2. Then, arrange for the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files to be reviewed by the February 2013 examiner. The examiner should be requested to review the Veteran's service treatment records and the other evidence of record and to prepare an addendum expressing an opinion as to whether there is a 50 percent or better probability that the Veteran's GERD and/or esophageal stricture or any other esophageal disability is related to his active service or reserve service in light of his February 1967 in-service treatment for mild pharyngeal injury and subsequent 1980s treatment records noting a history of dysphagia since 1967. The examiner is specifically directed to consider the in-service February 1967 notation of a "mild pharyngeal injury," the 1980s records noting a history of dysphagia since 1967, and the Veteran's contentions. In addition, for purposes of the opinion, the examiner should assume that the Veteran is a reliable historian. The originating agency must provide the examiner a list of all verified periods of ACDUTRA and INACDUTRA, to include (but not limited to) November 10, 1984, to November 12, 1984, which is significantly the month before the Veteran underwent a direct laryngoscopy, esophagoscopy, and esophageal dilatation. The rationale for the opinion must also be provided. If the examiner is unable to provide the required opinion, he should explain why. If the February 2013 examiner is unavailable, the RO or the AMC should arrange for the claims files and any pertinent evidence in Virtual VA that is not contained in the claims files to be reviewed by another physician with sufficient expertise who should be requested to provide the required opinion with supporting rationale. Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion. 3. Undertake any other indicated development. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with 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. By this remand the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 2002). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs