Citation Nr: 1325271 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-43 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for peripheral neuropathy, including as secondary to service-connected diabetes mellitus, type II. 4. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from December 1963 to December 1966 and had subsequent service in the Army National Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to an increased initial rating for diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's current tinnitus is not etiologically related to his active duty service, to include acoustic trauma in service. 2. The Veteran's current hypertension began many years after service, was not caused by any incident of service, and was not caused by or permanently worsened by his service-connected diabetes mellitus, type II. 3. The Veteran's current peripheral neuropathy began many years after service, was not caused by any incident of service, and was not caused by or permanently worsened by his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. Hypertension was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). 3. Peripheral neuropathy was not incurred in or aggravated by service, and is not proximately due to or the result of service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, the notice obligation was accomplished in a January 2009 letter to the Veteran. This notice included information on how to establish entitlement to service connection for a disability based on it being secondary to a service-connected disability. Therefore, the Board finds this notice is sufficient. The Board notes that the Veteran has indicated that he applied for Social Security Administration (SSA) benefits due to left knee replacement. The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). In this case, the Veteran has not reported that he is in receipt for SSA benefits due to his disabilities currently on appeal. Moreover, neither the Veteran nor his representative has contended that medical records associated with the SSA claim are relevant for the claims currently on appeal. Accordingly, the Board finds that obtaining the Veteran's SSA records would not aid in substantiating his claims because they would not "give rise to pertinent information" concerning his tinnitus, hypertension or peripheral neuropathy disabilities. Further, because there is no reasonable possibility that the Veteran's SSA records would assist in substantiating the currently appealed claim, the Board finds that there is no duty to obtain these records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence, including affording VA medical examinations in January 2009 and February 2009. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate. The VA nexus opinions provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provide a complete rationale for the opinions stated. Additionally, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA and private treatment records, VA examinations, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Legal Criteria & Analysis The Board has reviewed all the evidence in the record. 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 appellant 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions prohibit a grant of service connection on an aggravation basis without establishing a pre-aggravation baseline level of disability. These provisions are for application in the instant case as the Veteran filed his claim in 2009. Finally, certain chronic diseases, to include hypertension, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not always required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Factual Background & Analysis Tinnitus The Veteran has reported noise exposure in service and stated that he experienced tinnitus symptoms during service and since service. Based on the Veteran's competent statements regarding experiencing ringing in his ears, the Board finds the Veteran has a current disability of tinnitus. See Veteran's statement dated January 2009; see also Charles v. Principi, 16 Vet. App. 370 (2002). On the question of in-service injury or disease, after resolving any benefit of the doubt in favor of the Veteran, the Board finds that the Veteran is shown to have been exposed to loud noise in service based on his receipt of the Sharpshooter Badge (Rifle) during service and his contentions of loud noises from tans, "choppers" and airplane engines. The Board must now address whether the Veteran's current tinnitus began during active duty service or is otherwise related to active duty service. Although the Veteran currently claims his tinnitus began in service, service treatment records (STRs), including the September 1966 service separation examination, are negative for any complaints by the Veteran regarding ringing in his ears or tinnitus, are negative for abnormalities of hearing, and do not contain a diagnosis of tinnitus. Moreover, at the February 2009 VA examination, he reported that the onset of his tinnitus was approximately 30 to 40 years earlier (between 1969 and 1979), years after his reported noise exposure in service. Although the Veteran is competent to attest as to when his tinnitus symptoms began, the Board finds his current allegations regarding the tinnitus starting in service are outweighed by the contemporaneous medical records which are devoid of reference to complaints of ringing in the ears or a diagnosis of tinnitus. The Board also notes that the allegation that his tinnitus symptoms began in service, although competent, is given less weight based on the inconsistency of his reporting, in particular, based on his report at the 2009 VA examination that his symptoms actually began between 1969 to 1979, which would be three to thirteen years after discharge from active duty service. The Board's finding is supported by the competent medical evidence of record. The February 2009 VA audiological opinion reflects that the examiner noted that the Veteran's separation examination showed normal bilateral hearing through 4000 Hertz, which would indicate that the Veteran's hearing was normal when he separated from the Army in December 1966. The examiner also noted that the Report of Medical History dated at the time of military separation denied any hearing loss or ear trouble. The examiner stated that there was no evidence in the record that the Veteran had complaints of hearing loss or tinnitus while in the service or in the years immediately following discharge. Therefore, the examiner concluded that it is less likely as not that the Veteran's tinnitus is caused by or the result of military noise exposure. Based on the evidence of record, the Board finds that the weight of the competent evidence is against a finding of relationship between the Veteran's current tinnitus and the noise exposure during service. Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for tinnitus, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Hypertension The Veteran contends that he has hypertension that is related to his service-connected diabetes mellitus, type II. His service treatment records do not show complaints, findings, or diagnoses of hypertension, or any elevated blood pressure readings. The Veteran's September 1966 physical examination for purposes of discharge from service shows that his blood pressure reading was 104/62. Moreover, there is no diagnosis of hypertension or evidence of elevated blood pressure readings in the year after the Veteran's period of service, or for many years thereafter. The first post-service evidence of any possible hypertension, or elevated blood pressure readings, is in a November 1991 private treatment record from Dr. T. which shows that blood pressure reading was 140/70. Private treatment records from Dr. T. dated in December 2001 reflect that the Veteran was diagnosed with hypertension. While the Veteran is competent to report that he had certain symptoms during service, or since service, he is not competent to diagnose his claimed hypertension or to provide an opinion as to its relationship to active military service. Thus, the Veteran's lay assertions are not competent or sufficient to establish a connection between the current hypertension and the his active military service or a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, VA obtained a medical opinion to address the etiology of the current hypertension. The Veteran underwent a VA examination in June 2009. He reported that hypertension began in 2001. Following physical examination, the examiner diagnosed the Veteran with hypertension. The examiner opined that the Veteran's hypertension is not caused or aggravated by his diabetes mellitus. The examiner reasoned that the Veteran's hypertension was not caused or aggravated by the Veteran's diabetes mellitus because the hypertension began in 2001, before the Veteran was diagnosed with diabetes mellitus in 2008, and the symptoms of hypertension have not progressed nor has increased treatment been required since 2008. There are no competent medical opinions to the contrary. The weight of the competent medical evidence demonstrates that the Veteran's hypertension began many years after his period of service, was not caused by any incident of service, and is not proximately due to or the result of his service-connected diabetes mellitus, type II. The Board concludes that neither direct nor secondary service connection for hypertension is warranted. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy The Veteran contends that he has peripheral neuropathy that is related to his service-connected diabetes mellitus, type II. In this case, the Veteran's STRs contain no complaints of peripheral neuropathy. The Veteran did not report peripheral neuropathy at the time of his separation examination from active service in September 1966 or until many years after service. Private treatment records from Mercy Hospital show that the Veteran was diagnosed with unspecified polyneuropathy in March 2001. While the Veteran is competent to report that he had certain symptoms during service, or since service, he is not competent to provide an opinion as to the likelihood of a relationship between the current peripheral neuropathy and his active military service. Thus, the Veteran's lay assertions are not competent with respect to establishing a connection between the current peripheral neuropathy and his active military service or a service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, VA provided the Veteran with an examination to address the etiology of his current peripheral neuropathy. The Veteran underwent a VA examination in June 2009. He reported that tingling in both feet began in 2005. Following physical examination, the examiner diagnosed peripheral neuropathy. The examiner opined that the Veteran's peripheral neuropathy is not a condition that is caused or aggravated by his service-connected diabetes mellitus. The examiner reasoned that neuropathy began in 2005, before the Veteran was diagnosed with diabetes in November 2008 and that his neuropathy appears to be stable with no increase in symptoms of peripheral neuropathy or need for increased treatment since being diagnosed with diabetes mellitus in 2008. The weight of the competent medical evidence demonstrates that the Veteran's peripheral neuropathy began many years after his period of service, was not caused by any incident of service, and is not proximately due to or the result of his service-connected diabetes mellitus, type II. The Board concludes that neither direct nor secondary service connection for peripheral neuropathy is warranted. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for tinnitus is denied. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus, type II, is denied. Entitlement to service connection for peripheral neuropathy, including as secondary to service-connected diabetes mellitus, type II, is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's increased initial rating claim for diabetes mellitus, type II, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c),(d). In this regard, the Board notes that the Veteran's most recent VA examination for his diabetes mellitus is dated in January 2009, over four years ago. In addition, the Veteran's representative stated in May 2013 that the Veteran's service-connected diabetes mellitus, type II, has worsened since the January 2009 VA examination. As such, the Board finds that the Veteran should be afforded a contemporaneous VA examination in order to determine the current level of his service-connected diabetes mellitus. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Lastly, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his diabetes mellitus, type II, symptoms and the impact of the condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain relevant VA treatment records from the Lexington VA Medical Center, dated from October 2009 to the present. 3. The Veteran should be afforded a VA examination in order to assess the current nature and severity of his service-connected diabetes mellitus, type II. The Veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must state in the examination report that the claims file was reviewed. The examiner should render findings as to whether the Veteran's diabetes mellitus requires (i) insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, (ii) insulin, restricted diet, and regulation of activities, (iii) insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, or (iv) more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated. The examiner should also indicate the effect the disability has, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disability causes marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs