Citation Nr: 1333680	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  07-09 934A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas

THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for Type II Diabetes Mellitus.

3.  Entitlement to service connection for hypertension, including as secondary to the diabetes.

4.  Entitlement to service connection for peripheral neuropathy, including as secondary to the diabetes.

5.  Entitlement to service connection for a bilateral knee disability, including as secondary to the diabetes and/or a low back disability.

6.  Entitlement to service connection for a bilateral eye disability, including as secondary to the diabetes.

7.  Entitlement to service connection for arthritis, inclusive of skeleton arthritis and arthritis of the low back, including as secondary to the diabetes.

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1966 to April 1969.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2006 rating decision of a special processing unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claims for service connection for hearing loss, tinnitus, diabetes, peripheral neuropathy, arthritis inclusive of skeleton arthritis, a bilateral knee disability, a low back disability, hypertension, a bilateral eye disability, cold weather injuries of the upper and lower extremities, and a TDIU.

As support for these claims, and because of his actual state of residence, the Veteran testified at a hearing at the RO in Houston, Texas, in August 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).

The Board issued a decision in January 2011 confirming the denial of the claims for service connection for cold weather injuries of the upper and lower extremities, but granting the claim for service connection for tinnitus.  So those claims are no longer at issue.  The Board remanded the remaining claims for further development and consideration in that January 2011 decision and again in October 2012.  They are now again before the Board inasmuch as they since have continued to be denied. 

But the claims of entitlement to service connection for bilateral hearing loss, diabetes, hypertension, peripheral neuropathy, a bilateral eye condition, and a TDIU require still further development before being decided on appeal, so the Board is again remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding the remaining claims for low back and knee disabilities.


FINDINGS OF FACT

1.  The Veteran has a current low back disability, variously diagnosed as arthritis and a degenerative lumbar spine.

2.  But there is no competent and credible evidence linking his low back disability to his military service, including by way of a service-connected disability.

3.  He does not have a current knee disability and has not at any point since the filing of this claim, much less as a result or consequence of his service.


CONCLUSIONS OF LAW

1.  The Veteran's arthritis, inclusive of skeleton arthritis and the arthritis of his low back, is not shown to be due to disease or injury incurred in or aggravated by his active military service, may not be presumed to have been incurred in service, and is not secondarily related to his service, meaning caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


2.  He also does not have a bilateral knee disorder due to disease or injury incurred in or aggravated by his active military service, that may be presumed to have been incurred in service, or that is secondarily related to his service, meaning caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim.  The VCAA was codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159.

To satisfy its duty to notify, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of the:  1) information and evidence that is necessary to substantiate the claim; 2) information and evidence that VA will obtain; and 3) information and evidence he is expected to provide.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005).

When the claim is for service connection, this notice should address all five elements of the claim:  1) Veteran status; 2) existence of disability; 3) a connection between the Veteran's service and the disability; but also the "downstream" 4) degree of disability, i.e., disability rating; and 5) effective date in the eventuality service connection is granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).


Also, ideally, this notice should precede the initial adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (Pelegrini II).  If, however, for whatever reason it did not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing all necessary VCAA notice and then readjudicating the claim - including in a Statement of the Case (SOC) or Supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  

The U. S. Supreme Court has made clear that VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Here, the Veteran was provided letters in July and October 2005 detailing what the evidence must show to establish his entitlement to service connection, also a TDIU, and what evidence he versus VA was responsible for obtaining.  Those letters preceded the initial adjudication of his claim in February 2006, so were provided in the preferred sequence.  After adjudicating his claims in February 2006, he received subsequent notice discussing how "downstream" disability ratings and effective dates are assigned.  And his claims since have been readjudicated, most recently in the August 2013 SSOC.  Thus, he has received all required notice concerning his claims.


To satisfy its duty to assist, VA must make reasonable efforts to assist him in obtaining evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes assisting him in the procurement of his service treatment records (STRs), also the records of his relevant evaluation and treatment since service, whether from VA or private providers, and obtaining necessary medical examinations and opinions.  Id.  In disability compensation 
(service-connection) claims, VA must provide a medical examination when there is:  (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim..  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The Court has clarified that the third element of McLendon establishes a "low threshold" and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence suggesting a nexus, but that is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomotology such as pain or other symptoms capable of lay observation.  Id.  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (While there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate the current disability may be associated with service.  When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.).


To satisfy these duty-to-assist obligations, the Veteran's STRs have been obtained, as have his post-service VA and private treatment records.  Also, as a result of the Board remanding these claims in October 2012, he was given appropriate VA Compensation and Pension examinations for his knees and back, including for medical nexus opinions regarding the etiology of these claimed conditions, but especially in terms of the likelihood they are related or attributable to his military service or to another condition that, itself, is related or attributable to his service.  This critical determination was made after reviewing the entire claims folder for the pertinent history, and the VA examiner's opinions are responsive to these determinative issues of whether there is current disability and, assuming so, the cause of it in relation to the Veteran's military service.  So there was compliance with this remand directive, certainly what could be considered acceptable substantial compliance.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008).  There is no indication there is any relevant evidence that is still outstanding, so needing to be obtained, at least as concerning these claims now being decided.

In deciding these claims, the Board has reviewed all of the relevant evidence in the claims file, both the physical claims file and electronic ("Virtual VA") 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 exhaustive 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).

II.  Merits of the Claims

The Veteran contends that his arthritic back is the result of his time in the military or, in the alternative, to his diabetes condition that he is also claiming entitlement to service connection for.  Additionally, he contends he has a bilateral knee condition secondary to the arthritic back condition.

His claims, then, are predicated on both direct and secondary service connection.  And since, as will be explained, he has arthritis in his low back, the Board also must consider the notion of presumptive service connection.  In adjudicating these claims, the Board must consider all potential bases of entitlement.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the U. S. Court of Appeals for Veterans Claims (Court/CAVC) has jurisdiction by virtue of a Notice of Disagreement (NOD) satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination.

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed prior thereto.  This presumption attaches only where there has been an induction examination in which the later complained of disability was not detected ("noted").  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).


Since no back or knee conditions were observed or otherwise noted during his military entrance examination, it must be presumed he did not have any when entering service.  It still has to be shown that he has them now, however, and because of his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression.  38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306.

"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 an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'"  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

There is an alternative path to service connection using a presumption.  Presumptive service connection is available to Veterans who suffer from certain chronic disorders and diseases that manifest during service or within one year after service to the required minimum compensable degree of at least 10-percent disabling.  See 38 U.S.C.A. §§ 1101, 1112, 1113; C.F.R. §§ 3.307, 3.309(a).  If the conditions to presumptive service connection cannot be said to be "chronic" in the medical sense, a Veteran may still yet succeed if he can show a continuity of symptomotology under 38 C.F.R. § 3.303(b), but only assuming his condition is one listed in § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1339 (Fed. Cir. 2013).  Arthritis, or degenerative changes of the back, is a condition that qualifies for presumptive service connection under §3.309(a).

But there is no indication this condition incepted during his service or even within a year after, certainly not to the required minimum compensable degree of at least 
10-percent disabling.  Arthritis must be objectively confirmed by X-ray, so as a layman he does not have the competence to say when it began.  38 C.F.R. § 4.71a, Diagnostic Code 5003.

Furthermore, during the most recent VA examination, the examiner indicated the Veteran showed no evidence of this condition in 1970, the year after his discharge.  Thus, there is no basis for concluding it was directly incurred during his service or for presuming it was.

Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310(a) and (b) (2013).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Medical evidence is generally, though, not always, required to associate the claimed condition with a service-connected disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999).

With regards to medical evidence, a diagnosis or opinion by a health care professional is not conclusive and is not entitled to absolute deference.  Indeed, the Court has provided guidance for weighing medical evidence.  The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  

However, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons based upon medical evidence in the record for favoring one medical opinion over another.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (citing Colvin v. Derwinksi, 1 Vet. Appl. 171 (1991)).  Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source.  

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 in determining probative value 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 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).

The Federal Circuit Court has held that "[l]ay 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 profession."  Jandreau v. Nicolson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."  Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)).  However, a Veteran is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) ("[Competency] is a legal concept determining whether testimony may be heard and considered by the trier of fact, while [credibility] is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.")

In order to grant a Veteran's claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the Veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the documentation of a matter, VA shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Veteran's claims file contains diagnoses over the years of a degenerative back condition, most recently at the conclusion of his July 2013 VA examination.  There, he was diagnosed with "[d]egenerative lumbar spine - mild."  Images of his spine showed slight narrowing of intervertebral disc space at the L5/S1 level secondary to underlying degenerative changes in the disc.  There were also mild degenerative changes at the facet joints at the L4/5 and L5/S1 levels.  The final impression of the images was:  "[m]inimal degenerative changes...demonstrated at the lower part of the lumbar spine."  But regarding the determinative issue of etiology, the examiner determined the Veteran's arthritic back was less likely than not (less than 50 percent probability) incurred in or caused by a claimed in-service injury.  The examiner's reasoning was based upon the absence of anything back related contained in the Veteran's STRs.


After review, it is apparent that the Veteran's STRs do not contain any reference whatsoever to a back condition - either in the way of a relevant subjective complaint or objective clinical finding such as a pertinent diagnosis.  Specifically, his entrance examination and report of medical history did not indicate a back problem, nor did his separation examination or report of medical history.  So there was no suggestion of anything relevant having occurred during his service.  He was not treated for any back condition during his service, and while this, alone, is not determinative of whether he had a then existing back condition, it is nonetheless one of the factors in making this determination.  Moreover, as mentioned, he also did not have any relevant complaints, either.

He has not provided a narrative about any back injury incurred in or aggravated by his service.  He has only stated a theory of his claim, that being that his arthritis is secondary to his current diabetes condition.  The record does not contain any lay statements from him or others regarding the onset of his back condition beyond this.  Thus, without an in-service event to link his current condition to, his claim for direct service connection fails, as does, as already explained, the notion of presumptive service connection for arthritis in particular.

He first raised the alternative theory of his arthritis being secondary to his diabetes in his April 2007 substantive appeal (on VA Form 9).  He indicated that he was still claiming entitlement to service connection for both skeleton arthritis and a low back injury; this was combined into one claim in the Board's last remand.  While his claim for service connection for diabetes is being remanded, this does not prevent a decision regarding his alleged derivative arthritis.  This is because at both his March 2011 and July 2013 VA examinations, the examiners concluded there was no evidence in medical literature indicating a connection between diabetes and arthritis like that the Veteran has.  So these examiners completely disassociated the arthritis from the diabetes, irrespective of any potential relationship between the diabetes and his military service.  Consequently, there is no need to wait for further clarification regarding his diabetes or for another opinion regarding this theory, as there are now two statements from medical examiners unequivocally stating that arthritis secondary to diabetes is not supported in medical literature.

The latest VA examination is adequate for rating purposes regarding his arthritis.  Thus, the Board must deny his claim for service connection for his arthritis of the back, as the requirements for direct, presumptive, and secondary service connection are not met.  Arthritis is not a simple condition, so not one that is readily amenable to probative lay comment regarding its diagnosis and etiology.  He therefore cannot establish the required causation or aggravation, himself.  Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).  In this particular instance, the Board did indeed request a medical nexus opinion, and it was entirely unfavorable to this claim.

Regarding his claim of entitlement to service connection for a bilateral (right and left) knee disability, including secondary to his back condition, there is no indication in the record that he currently suffers from any knee disability.  He was diagnosed with normal knees at the conclusion of his March 2011 VA examination.  However, it was not apparent that the examiner had taken X-rays of the knees, so the Board remanded this claim for another examination that included this additional, more comprehensive, radiographic study.  This X-ray was taken during the July 2013 VA examination since held.  And even with the benefit of this additional information, the VA examiner concluded the Veteran did not have, or ever have, a bilateral knee condition.  There was no evidence of painful motion, and he had normal flexion and extension in both knees.  
The X-rays, themselves, revealed largely normal knees, albeit with a bone fragment observed in the left knee.

The symptom of pain in and itself is not recognized as disabling for VA compensation purposes.  See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted."); dismissed in part and vacated in part on other grounds, 
Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).

Therefore, here, absent a current diagnosis of a bilateral knee condition, or at the very least since the filing of the claim for this alleged disability, the claim is not sustainable and accordingly must be denied.


ORDER

The claim of entitlement to service connection for arthritis, inclusive of skeleton arthritis and arthritis of the low back, including as secondary to diabetes, is denied.

The claim of entitlement to service connection for a bilateral knee disability, including as secondary to the diabetes and/or a low back disability, also is denied.



REMAND

Unfortunately, the remaining claims must be remanded yet again due to 
noncompliance with the prior remand order - indeed, even what could be considered acceptable substantial compliance.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

Bilateral Hearing Loss

In the October 2012 remand, the Board remanded the Veteran's hearing loss claim to get clarification as to whether the Maryland Speech CNC Test was used during a private audiological examination in September 2004.  The AMC did get clarification regarding the use of the Maryland Speech CNC Test in a May 2013 statement from an audiologist at the place of that examination.  The Veteran also submitted a May 2013 examination from the same private audiologist, complete with Maryland CNC Test results.  All of this was sent to the VA examiner for an opinion.  The VA examiner, however, did not in turn completely comply with remand directive one, which stated, "[t]here also needs to be indication of whether [the Veteran] had sensorineural hearing loss in [the right] ear to a compensable degree of at least 10-percent disabling within one year of his separation from service in April 1969" - so meaning by April 1970.  This was not discussed in the examiner's August 2013 addendum opinion, thus, there must be another addendum providing this additional necessary information.

Type II Diabetes Mellitus

The Board remanded this claim to get clarification as to whether findings during the Veteran's military induction and separation examinations represented clear and unmistakable evidence as to whether he had diabetes at those times.  An answer was provided to this inquiry in the negative.  The examiner was also asked to provide, in the alternative, an opinion as to the likelihood the Veteran's diabetes had manifested during his service or within one year after his service.

But the examiner simply stated, "[t]here is no 'clear and unmistakable evidence' in available records that the Veteran's diabetes mellitus is in any way related to his military service."  This statement fails to address the likelihood his diabetes initiated during his service or within one year after the conclusion of his service.  The remand order was asking for an opinion, irrespective of any clear and unmistakable evidence, regarding this issue in order to adjudicate the Veteran's claim when considering both direct and presumptive service connection.  In other words, it is merely necessary to show the condition started during the Veteran's service or within the one-year presumptive period after the conclusion of his service, even if not caused or aggravated by his service, per se.  So without this necessary additional information, the Board cannot proceed on this claim either.

Peripheral Neuropathy, Hypertension, and Bilateral Eye Disability

The Veteran is claiming entitlement to service connection for these additional disabilities on the premise they are secondary to his diabetes, in other words, complications of it.  Thus, these claims remain "inextricably intertwined" with the diabetes claim.  As the Board explained in its October 2012 remand, they are not ripe for adjudication and have to also be remanded.  See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (indicating claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one or more of the claims cannot be rendered until a decision on another.  These types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters).  See also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). 


Furthermore, remand directives were not complied with regarding specific opinions for each of these additional conditions.  Regarding the hypertension and peripheral neuropathy, the examiner was directed to provide an opinion as to whether the conditions were proximately due to, the result of, or chronically aggravated by the diabetes.  These opinions were not generated.

Additionally, the Board sought clarification regarding whether the Veteran's refractive error was a "disease" or "defect."   VA's General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations.  VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306.  Also according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90.

Recognizing this, if the claimed disorder is a disease, an opinion is required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression.  If instead the claimed disorder is a defect, an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect.  The examiner therefore was instructed to make this determination and offer an opinion, but did not, instead only noting the Veteran's refractive error was "congenital."  The examiner did comment on the absence of diabetic retinopathy and why this condition may have resolved, stating that "[d]iabetic retinopathy is strongly correlated with the blood sugar control," and pointed out that the Veteran's blood sugar control had improved over time.  

The examiner also opined that the Veteran's "early senile cataracts and prior diagnosis of nonproliferative diabetic retinopathy are as likely as not related to diabetes mellitus."  So the examiner complied with some of the remand directive concerning the Veteran's eye conditions, but further comment is needed regarding the specific congenital nature of the Veteran's refractive error.  

TDIU

A TDIU may be assigned where the scheduler rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran is only currently service connected for tinnitus, rated as 10-percent disabling, which is the highest possible schedular rating for this condition.  See 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005), aff'd Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).  But should the RO determine he is entitled to service connection for any of his additionally claimed disabilities, his claim for a TDIU is inextricably intertwined with that determination and, thus, should be decided after that determination is made.  Harris, 1 Vet. App. 180, 183; Ephraim, 82 F.3d 399.

Accordingly, these claims are REMANDED for the following additional development and consideration:

1.  Forward the claims file to the examiner who provided the August 2013 addendum opinion on the Veteran's hearing loss.  The examiner must comment additionally on whether there is any indication the Veteran had sensorineural hearing loss to a compensable degree of at least 10-percent disabling within one year of his separation from service in April 1969, so meaning by April 1970.  To this end, the examiner should comment as well on the Veteran's speech discrimination score of 92 percent in the right ear according to the Maryland CNC test mentioned in the report of the September 2004 private audiological examination, which is a compensable amount of hearing loss for VA rating purposes.

If the examiner who provided the August 2013 addendum is no longer available to provide this additional supplemental comment, then have someone else equally qualified do so.  In this eventuality, however, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed.

2.  Forward the claims file to the examiner who provided the July 2013 VA diabetes compensation examination for additional comment.  

Specifically, the examiner must opine on the likelihood (very likely, as likely as not, or unlikely) the Veteran's diabetes initially manifested during his service, including when considering his diet in service, or alternatively, manifested to a compensable degree of at least 10-percent disabling within one year of separation from service in April 1969, so meaning by April 1970.

If the examiner who performed the July 2013 diabetes examination is no longer available to provide this supplemental comment, then have someone else equally qualified do so.  In this eventuality, however, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed.

3.  Forward the claims file to the examiners who performed the July 2013 VA examinations regarding the Veteran's hypertension and peripheral neuropathy for additional comment.

Specifically, each examiner must opine as to the likelihood (very likely, as likely as not, or unlikely) the Veteran's hypertension and peripheral neuropathy are proximately due to, the result of, or chronically aggravated by his diabetes, i.e., secondary to the diabetes. 

If the examiners who performed the July 2013 examinations regarding the Veteran's hypertension and peripheral neuropathy are no longer available to provide this supplemental comment, then have someone else equally qualified do so.  In this eventuality, however, this may require having the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed.

4.  Forward the claims file to the examiner who provided the July 2013 VA eye examination for additional comment.  

Specifically, the examiner must opine as to whether any refractive error found present is a congenital "disease" or "defect".  If a "disease", there needs to be comment on the likelihood (very likely, as likely as not, or unlikely) it was aggravated by the Veteran's military service beyond its natural progression, specifically when considering his December 1966 treatment for conjunctivitis and a left eye injury and his January 1967 treatment for a foreign body in his right eye and conjunctivitis of both eyes.

If instead a "defect", opine as to the likelihood (very likely, as likely as not, or unlikely) this defect was subject to a superimposed disease or injury during his military service that resulted in additional disability apart from the congenital or developmental defect, also when specifically considering his December 1966 treatment for conjunctivitis and a left eye injury and his January 1967 treatment for a foreign body in his right eye and conjunctivitis of both eyes.

In responding to these inquiries, the examiners should consider that the term "as likely as not" means at least 50 percent probability.  It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

Moreover, to the extent the Veteran offers any supporting lay statements during the examination as to the experiencing of relevant symptoms or other disability while in service, or continually since, the examiner must remain mindful that the Veteran may be competent to report having experienced such symptoms since this may require only his personal knowledge, not medical expertise, as it may come to him through his senses.  The examiner therefore must specifically address the Veteran's claims that these claimed disabilities date back to his military service or were caused or aggravated by service-connected disability.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion).

That said, however, the Veteran's testimony concerning this also must be considered in light of the medical and other evidence of record to determine whether it is also credible (a factual determination) to ultimately have probative value.  Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")).

The examiners must discuss the medical rationale of the opinions, whether favorable or unfavorable, based on the objective clinical findings and information obtained from review of the record.  So the claims file, including a complete copy of this remand, must be made available to the examiners to allow him/her opportunity to become familiar with the Veteran's pertinent medical and other history.

If the requested opinions cannot be provided without resorting to mere speculation, the examiners should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.


5.  Then readjudicate these remaining claims in light of the additional evidence.  If these claims continue to be denied, send the Veteran another SSOC and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these remaining claims.

He has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs