Citation Nr: 1331510 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 06-12 430 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus with erectile dysfunction and coronary artery disease, status post myocardial infarction and stent placement. 2. Entitlement to service connection for tinnitus, to include as secondary to hypertension. 3. Entitlement to service connection for bilateral hearing loss, to include as secondary to hypertension. 4. Entitlement to service connection for bilateral foot ulcerations, to include as secondary to diabetes mellitus with erectile dysfunction. 5. Entitlement to an initial rating higher than 20 percent for diabetes mellitus with erectile dysfunction. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2004 and March 2005 decision by a Department of Veterans Affairs (VA) Regional Office (RO). On reconsideration of an August 2002 rating decision, the June 2004 rating decision continued the August 2002 rating decision's initial assignment of a 20 percent rating for diabetes mellitus type II; and continued the August 2002 rating decision's prior denial of service connection for gouty arthritis/right foot gout, foot ulceration secondary to diabetes mellitus type II, bilateral upper and lower extremity peripheral neuropathy secondary to diabetes mellitus type II, diabetic nephropathy, bilateral lower extremity peripheral vascular disease secondary to diabetes mellitus type II, erectile dysfunction/impotency, coronary artery disease, and hypertension. The March 2005 rating decision denied service connection for hearing loss and tinnitus. In a rating decision dated in October 2006, the RO granted the issues of service connection for erectile dysfunction and service connection for left and right lower extremity peripheral vascular disease. The benefit sought, namely, service connection, having been granted, those claims are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In May 2010, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Houston, Texas. A transcript of that hearing is in the claims file. In a decision dated in July 2010, the Board denied the issues of service connection for diabetic retinopathy, diabetic nephropathy, and gout/gouty arthritis, to include as secondary to diabetes. The Board then remanded the issues of service connection for coronary artery disease, hypertension, bilateral upper and lower extremity peripheral neuropathy, bilateral hearing loss, tinnitus, and bilateral foot ulceration; and the issue of an increased rating for diabetes, for further development. In July 2012 the Board again remanded these issues to ensure compliance with its July 2010 directives. In a rating decision dated in October 2011, the RO granted the issue of service connection for coronary artery disease; and in a rating decision dated in December 2012, the Appeals Management Center (AMC) granted the issues of service connection for right and left upper and lower extremity peripheral neuropathy. The benefit sought, namely, service connection, having been granted, those claims are no longer on appeal. Grantham. The issue of service connection for hearing loss is REMANDED to the RO via the AMC, in Washington, D.C. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. Hypertension was not present in service or for years thereafter. 2. The onset of hypertension preceded the onset of the Veteran's service connected diabetes mellitus and coronary artery disease. 3. No probative evidence links hypertension to service or service connected disability. 4. A VA medical opinion linked a medication used to treat service connected coronary artery disease with tinnitus. 5. The medical evidence does not show the Veteran to have had foot ulcerations during the course of the appeal. 6. The Veteran has used oral medication and has been ordered to follow a restricted diet for control of his diabetes mellitus during the appeal period; but his diabetes mellitus has not required insulin, and he has not been ordered to avoid strenuous occupational and recreational activities at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hypertension are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The criteria for a grant of service connection for tinnitus are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. The criteria for a grant of service connection for bilateral foot ulceration are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 4. The criteria for an initial rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters dated in May 2002, October 2004, December 2005, and March 2006 Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). These letters informed the Veteran of the criteria for service connection; of the information and evidence needed to substantiate his claim; and of VA's respective duties for obtaining evidence. The 2006 letter specifically apprised the Veteran of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case. The Veteran's service treatment records, VA treatment records, and private medical records are in the file. The Veteran was also accorded multiple VA examinations, and the Board obtained a medical opinion. The Board has reviewed all of the medical evidence and finds it to be adequate for resolution of the issues resolved in this decision. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition to the foregoing, in May 2010 the Veteran testified regarding his claims before the undersigned Veterans Law Judge. During that hearing the Veterans Law Judge and the Veteran's representative explained the issues and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veterans Law Judge and the Veteran's representative also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claims. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). In short, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Accordingly, the Board concludes that all reasonable efforts have been made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence on the issues resolved in this decision is required. See Pelegrini, 18 Vet. App. at 121; Conway, 353 F.3d. at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability, or is aggravated by a service connected disability. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). 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 Veteran. 38 U.S.C.A. § 5107(b). Facts and Analyses The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). A. Hypertension The Veteran seeks service connection for hypertension, which he suggests may be related to his service-connected diabetes mellitus type II disability. On review of the record the Board finds that the preponderance of the evidence is against the claim. A review of the record discloses that the Veteran did not have hypertension until the mid 1990's, nearly 30 years after service. No probative evidence links it to the Veteran's period of service, (and it is not presumed to be due to herbicide exposure in Vietnam 38 C.F.R. §§ 3.307, 3.309) and significantly, it preceded the Veteran's diagnosis of diabetes by approximately 3 years. A VA physician, in a June 2013 opinion, has noted that this fact precludes a finding that diabetes resulted in the Veteran's hypertension. No probative evidence contradicts this conclusion, and none indicates any service connected disability has caused hypertension to increase in severity beyond its natural progression. In these circumstances, a basis upon which to establish service connection has not been presented and the appeal is denied. B. Tinnitus In his 2004 claim for service connection, and during an October 2004 QTC audiology examination, the Veteran complained of ringing in the ears; particularly during the previous 4 to 5 years; and the audiologist noted that the Veteran was on medications that have known otoxic effects. In an opinion dated in June 2013, a VHA medical expert also noted that the Veteran's treatment regime for the past ten years had included various non-steroidal anti-inflammatory drugs, including naproxen, aspirin, indomethacin, and salsalate; and stated that tinnitus was a known side effect of these drugs. He then opined that it was at least as likely as not that the Veteran's tinnitus was secondary to his medication regime; and the record contains no evidence to the contrary. As the evidence confirms that the Veteran's treatment regime for his service-connected coronary artery disease includes some of the medications the opinion provider identified as responsible for the tinnitus, the Board finds that service connection for tinnitus secondary to a service-connected disability is warranted. 38 C.F.R. § 3.310. C. Bilateral Foot Ulcerations The Veteran's service treatment records show no complaints or ulcers on the feet. Similarly, the post service record is silent as to any foot ulcerations. There have been records showing lesions on the Veteran's legs, as well as the presence of cellulitis, but none show ulcerations of the feet. VA diabetic examination conducted in February 2012 did show trophic changes of the feet associated with diabetic peripheral neuropathy, (for which the Veteran is service connected), but there was no indication of any ulceration. In this case, the file contains voluminous medical records documenting the Veteran's diabetes and related complications, but there is no evidence he has had any ulceration of the feet. In the absence of such evidence of the claimed disability, a basis upon which to establish service connection has not been presented, and the appeal is denied. III. Increased Rating, diabetes mellitus type II In a rating decision dated in June 2004, the RO continued its August 2002 rating decision's initial assignment of a 20 percent rating for diabetes mellitus type II. The Veteran has appealed the assigned rating. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). Of course, staged ratings are appropriate for an increased-rating claim when the factual findings shown distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Under Diagnostic Code 7913, the criteria for a 20 percent rating are diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. The criteria for a 40 percent rating are diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The criteria for a 60 percent rating are diabetes mellitus requiring 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 evaluated. Facts On VA diabetes examination in July 2002, the examiner noted that the Veteran was on a restricted/special diet but there was no history of hospitalization or surgery associated with diabetes and the Veteran was not restricted in his activities secondary to his diabetes. There was no mention of insulin in this report, or in contemporaneously written treatment records. VA treatment records dated in January 2011 note that the Veteran's diabetes mellitus was well controlled; that the Veteran was being encouraged to become more active; and that the Veteran had stated that he was going to join the YMCA. There was no mention of insulin. On VA diabetes examination in February 2012, the examiner noted that the Veteran's diabetes was controlled by oral medication and restricted diet; that his activities were not regulated; and that there was no history of hospitalization or surgery associated with diabetes. On VA diabetes examination in October 2012, the examiner noted that the Veteran's diabetes was controlled by oral medication; that his activities were not regulated; and that there was no history of hospitalization or surgery associated with diabetes. Analysis The evidence confirms that the Veteran follows a restricted diet and uses oral medication for control of his diabetes, but his treatment regime has not included insulin with regulation of activities at any time during the appeal period. The Board accordingly finds that the Veteran does not meet the criteria for a 40 percent or higher rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007). As the criteria for a higher schedular rating under Diagnostic Code 7913 have not been demonstrated at any time during the appeal period, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). A staged rating is in turn not warranted as the evidence does not meet the criteria for a rating greater than 20 percent at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505, (2007). The Board is mindful that a claim for TDIU [total disability rating for compensation based on individual unemployability] is part of an increased rating claim when such claim is raised by the record (Rice v. Shinseki, 22 Vet. App. 447 (2009), and notes the Veteran's report, during his August 2010 VA heart examination, that he took a medical retirement due to his coronary artery disease and diabetes mellitus. However, the Veteran has already been granted individual unemployability so that issue is moot. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the assigned rating criteria reasonably describe the Veteran's disability level and symptomatology and provides for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, the Veteran is already separately compensated for the additional disabilities caused by his service-connected diabetes mellitus type II. Consequently, referral for extraschedular consideration is not warranted. ORDER Service connection for hypertension is denied. Service connection for tinnitus is granted. Service connection for bilateral foot ulcerations is denied. Entitlement to an initial disability rating higher than 20 percent for diabetes mellitus is denied. REMAND With respect to hearing loss, the Board previously sought a medical opinion regarding whether the Veteran's hearing loss was due to any medications taken for his service connected disabilities, as an earlier examiner indicated that could be the case. The opinion provided did not address this question, and therefore, another opinion should be sought. Accordingly, the case is REMANDED for the following action: 1. The file should be forwarded to a person knowledgeable of the causes of hearing loss, and that person should review the record, and enter an opinion as to whether any current hearing loss was caused, or has increased in severity beyond its natural progression, by medication taken for any service connected disability. If that is the case, the medication and the disability for which it is taken should be identified. 2. After completion of the above and any other development deemed necessary, re-adjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs