Citation Nr: 1333945 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-47 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial evaluation greater than 20 percent for type 2 diabetes mellitus. 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to February 1970. He had additional unverified Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In addition to the listed issues, the Veteran also perfected an appeal as to service connection for posttraumatic stress disorder (PTSD). In May 2013, the RO granted service connection for PTSD and assigned a 50 percent evaluation from August 7, 2008. As the service connection issue was resolved, it is no longer for consideration. Also in May 2013, the RO granted service connection for mild nonproliferative diabetic retinopathy with early cataract as secondary to type 2 diabetes mellitus and assigned a separate 10 percent evaluation effective February 26, 2010. To date, the Veteran has not disagreed with this decision. The Virtual VA and VBMS folders have been reviewed. The issue of service connection for hypertension 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 type 2 diabetes mellitus does not require insulin, restricted diet, and regulation of activities. 2. The preponderance of the evidence is against finding that the Veteran's currently diagnosed hepatitis C is related to active military service or events therein. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation greater than 20 percent for type 2 diabetes mellitus are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.119, Diagnostic Code 7913 (2013). 2. Hepatitis C was not incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.301, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2008, prior to the rating decision in question, of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. This letter also provided notice of how VA assigns disability ratings and effective dates. The appeal for an increased evaluation for type 2 diabetes is a downstream issue. As service connection, an initial rating and an effective date have been assigned, the notice requirements have been met. VA has also satisfied its duty to assist with regard to the issues decided herein. The claims folder contains service treatment records, service personnel records, and VA medical records. A September 2008 VA outpatient record notes that the Veteran was educated on how to apply for Social Security disability benefits and that he was going to follow up with the Social Security Administration (SSA). On review, it is unclear whether the Veteran has ever applied for SSA benefits. He has not identified SSA records as relevant and recent VA records suggest he is working and going to school. Under these circumstances, the Board finds no basis for remand. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (VA has an obligation to secure SSA records only if there is a reasonable possibility that the records would help to substantiate the Veteran's claim). The Veteran was provided VA examinations in September 2012. The examinations addressed the current severity of his diabetes as well as the etiology of claimed hepatitis C. The claims folder was reviewed and the examinations contain sufficient findings and rationale. Additional examination is not warranted as to the issues decided. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Evaluation for diabetes In March 2009, the RO granted service connection for type 2 diabetes mellitus as associated with herbicide exposure and assigned a 20 percent evaluation effective August 7, 2008. The Veteran disagreed with the evaluation and perfected this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the United States Court of Appeals for Veterans Claims (Court) discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation is disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Pursuant to the rating schedule, diabetes is evaluated as follows: manageable by restricted diet only (10 percent); requiring insulin and restricted diet or oral hypoglycemic agent and restricted diet (20 percent); requiring insulin, restricted diet and regulation of activities (40 percent); 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 (60 percent); and requiring 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 evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. VA outpatient records show that the Veteran has diabetes and is on insulin. An October 2011 record indicates that his A1C had increased due to changes in lifestyle. Specifically, "living with significant other who cooks a lot and a change in job status." He was compliant with his insulin regimen, felt well, and denied signs or symptoms of hyperglycemia or hypoglycemia. He does not exercise due to occasional right hip pain. The Veteran was educated on a low carb diet and portion control and was to follow up for insulin titration. The Veteran underwent a VA diabetes examination in September 2012. He reported a history of restricted diet, oral hypoglycemic agents, and insulin. The Veteran reported that he was limited from strenuous activities as a result of his diabetes. He visits his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month. He has not had any episodes of ketoacidosis or hypoglycemia requiring hospitalization over the past 12 months. He has not had progressive unintentional weight loss or progressive loss of strength attributable to diabetes. The examiner stated that the Veteran's diabetes did not impact his ability to work. On review, the Board finds that the Veteran's diabetes does not necessitate regulation of activities as contemplated by the rating schedule and the criteria for a 40 percent evaluation are not met or more nearly approximated. In making this determination, the Board acknowledges the September 2012 VA examination, wherein the examiner checked "yes" to the question "[d]oes the Veteran require regulation of activities as part of medical management of diabetes mellitus (DM)?" The examination report notes that "[f]or VA purposes, regulation of activities can be defined as avoidance of strenuous occupational and recreational activities with the intention of avoiding hypoglycemic episodes." In considering the examination report, it appears that the statement regarding the need for regulation of activities was based solely on the Veteran's reported history. The Veteran is competent to report his symptoms and perceived limitations due to diabetes. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). The Board further notes that the Veteran was apparently a physician's assistant for many years until he lost his license. Regardless, the Board does not find the statement regarding activity restrictions supported by the overall evidence or probative in light of the outpatient treatment records. VA records do not indicate the Veteran's diabetes is so severe or difficult to control that he must avoid strenuous occupational and recreational activities, and hypoglycemic episodes, or signs or symptoms thereof, are not shown. The disability picture has not changed significantly during the appeal period and staged ratings are not warranted. See Fenderson. In reaching this decision, the Board has also considered whether the Veteran may be entitled to extraschedular ratings pursuant to 38 C.F.R. § 3.321. In accordance with Thun v. Peake, 22 Vet. App. 111 (2008), there is a sequential three-step analysis to determine whether a case should be referred for extraschedular consideration. Step one, is to determine whether the schedular rating adequately contemplates a claimant's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, then no referral for consideration of an extraschedular rating is required. If the schedular criteria do not contemplate the claimant's level of disability and symptomatology and the schedular criteria are therefore found to be inadequate, then step two is to determine whether the claimant's disability picture is exceptional with related factors such as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular criteria. If the disability picture meets the second step, then the third step is to refer the case to the Under Secretary for Benefits or the Director, Compensation Service to determine whether an extraschedular rating is warranted. Regarding the first step of Thun, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology. The Veteran's diabetes is manifested by the need for restricted diet and insulin, which are clearly contemplated in the rating criteria. The associated diabetic retinopathy is separately evaluated. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). The September 2012 PTSD examination indicates that the Veteran is currently working. There is no evidence to suggest that the Veteran is unemployable by reason of his diabetes and the Board declines to infer a claim for a total disability evaluation based on service-connected disability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Service connection for hepatitis C In March 2009, the RO denied service connection for hepatitis C. The Veteran disagreed with the decision and perfected this appeal. In July 2013, the representative noted the Veteran's belief that he contracted hepatitis while serving as a hospital man in Vietnam. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter [38 U.S.C.S. §§ 1110 et seq.], but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. § 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hepatitis C is not listed as a chronic disease at 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) is not for application. 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). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is now well settled that "'lay evidence is one type of evidence that must be considered' and that 'competent lay evidence can be sufficient in and of itself.'" King v. Shinseki, 700 F .3d 1339, 1344 (Fed.Cir.2012) (quoting Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006)); Davidson v. Shinseki, 581 F.3d at 1315-16 (Fed.Cir.2009) (rejecting the view that "competent medical evidence is required ... [when] the determinative issue involves either medical etiology or a medical diagnosis."). When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. Davidson, 581 F.3d at 1316 (reiterating 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 professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007)). If the disability is of the type for which lay evidence is competent, the Board must weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan, 451 F.3d at 1334-37. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Medically recognized risk factors for hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 01-02 (April 17, 2001). VA Fast Letter 04-13 (June 29, 2004) concluded that the large majority of hepatitis C infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992 and injection drug use. Service treatment records do not show any complaints or treatment related to hepatitis C or other chronic liver disorder. In September 2008, VA notified the Veteran of recognized risk factors for hepatitis C and asked which risk factors applied to him. The Veteran did not respond with specific information as to his risk factors. Notwithstanding, such information is contained within his VA treatment records. For example, a July 2007 VA psychiatry note documents a 15 year history of intravenous drug abuse with heroin dependence, quit 25 years ago. A history of cocaine, Demerol, morphine and alcohol abuse was also noted. An August 2008 VA record notes an extensive history of polysubstance abuse to include cannabis, cocaine, hallucinogens, and inhalants. He started using intravenous Talwin in Vietnam and started shooting heroin in the late 1970's. Sexual addiction is also noted in the treatment records. On VA examination in September 2012, the Veteran reported a history of intravenous drug abuse while in Vietnam. He also reported that hepatitis was diagnosed in 1970 by an internist. Regarding risk factors, he reported intravenous drug use or intranasal cocaine use and high risk sexual activity. He also reported that he participated in combat activity. Following examination and review of the claims folder, the examiner opined that hepatitis C was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support of his opinion, the examiner stated as follows: The veteran's hepatitis C is less likely as not related to working as a hospital man in Vietnam during military service. Based on the history, medical records reviewed and current findings the veteran's hepatitis C is less likely than not related to working as a hospital man in Vietnam during military service. According to the veteran his risk factors for his hepatitis C was his [intravenous] drug use which is confirmed in records of 2007 and 2008. He was using intravenous drugs of Talwin and heroin during the 1970's. Currently he has elevated levels of hepatitis C but there is no evidence of hepatic failure. Initially, the Board notes the Veteran's reports of combat participation. Personnel records show that the Veteran was a hospital man and was assigned to the U.S. Naval Support Activity, Danang, Vietnam. The Veteran did not receive any awards or decorations establishing combat participation. The Board has considered the Veteran's April 2009 statement discussing his Vietnam service, to include working at a military hospital and a security base. The overall evidence, however, is against finding that the Veteran engaged in combat with the enemy. 38 U.S.C.A. § 1154(b) (West 2002) is not for application. The Board has considered the Veteran's statement that he was diagnosed with hepatitis C in 1970. As set forth, there is no objective evidence of liver problems during service or for many years thereafter. The Veteran underwent a physical examination in May 1972 in connection with his Reserve service. At that time, he specifically denied having jaundice or hepatitis. Thus, the Board finds the Veteran's report regarding the date of diagnosis to be inconsistent with other evidence and not credible. The Veteran's current diagnosis of hepatitis C has essentially been related to intravenous drug abuse. To the extent the Veteran was using intravenous drugs during service, in-service drug abuse is willful misconduct and does not provide a basis for service connection. See 38 C.F.R. § 3.301; 38 U.S.C.A. § 1110 (no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs). The Board has considered the Veteran's contention that hepatitis is related to his duties as a hospital man. The Board notes that while the Veteran has reported exposure to seriously wounded and deceased soldiers and that he performed certain medical procedures, he has not specifically asserted accidental exposure to blood or other direct percutaneous exposure to blood. As discussed, the Veteran was apparently a physician's assistant. To the extent his assertion constitutes a medical opinion as to nexus, the Board does not find it probative. That is, this statement is inconsistent with other evidence of record, particularly that evidence showing an extensive history of polysubstance abuse, to include intravenous drug use, and risky sexual behavior. Questions of credibility notwithstanding, the Veteran's contentions are not sufficient to outweigh the reasoned VA opinion of record. In conclusion, the preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. ORDER An initial evaluation greater than 20 percent for type 2 diabetes mellitus is denied. Service connection for hepatitis C is denied. REMAND In March 2009, the RO denied entitlement to service connection for hypertension. The Veteran disagreed with the decision and perfected this appeal. In July 2013, the representative noted the Veteran's contention that his hypertension was caused on a direct basis while he was in service or as secondary to his development of diabetes. The Veteran underwent a VA hypertension examination in September 2012 and medical opinions were obtained. As to direct service connection, the examiner determined that the Veteran's hypertension was less likely than not incurred in or caused by service. Supporting rationale was provided for this opinion. As to secondary service connection, the examiner stated that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected condition. Regarding rationale, the report states "see addendum IMO [xxxxxx]". The examiner did not provide a medical opinion regarding aggravation of a nonservice-connected condition by a service-connected condition. The Board has reviewed the claims folder and virtual folders and is unable to locate the referenced addendum. The Board observes that the direct service connection opinion noted that in spite of having diabetes, the Veteran had no evidence of neuropathy that can cause his hypertension. It is unclear, however, whether this is the rationale being referred to. The September 2012 diabetes examination did not identify hypertension as a complication of or as aggravated by the Veteran's diabetes. Rationale was not provided for these findings. On review, the Board finds it necessary to remand this issue to obtain rationale regarding secondary service connection, to include based on aggravation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) Accordingly, the case is REMANDED for the following action: 1. The September 2012 hypertension examination and medical opinion should be returned for additional information. That is, the examiner should be asked to provide the addendum referenced as rationale for secondary service connection. See Medical Opinion, Disability Benefits Questionnaire (regarding secondary service connection for hypertension), 5.c. If the examiner is unable to provide the referenced addendum, he/she should be asked to provide sufficient rationale in support of the opinion that the Veteran's hypertension was less likely than not proximately due to or the result of service-connected diabetes. The examiner should also be asked to provide an opinion as to whether it is at least as likely as not that the Veteran's hypertension was aggravated by service-connected diabetes. If aggravation is found, the examiner must render an opinion as to the extent of the aggravation and provide a baseline prior to the aggravation. 2. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for hypertension. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs