Citation Nr: 1334720	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  09-25 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for morbid obesity, claimed as secondary to service-connected Type II diabetes mellitus (hereinafter "DM"); or alternatively, as due to herbicide (Agent Orange) exposure.  

2. Entitlement to service connection for a sleep disorder (claimed as sleep apnea), claimed as secondary to service-connected DM; or alternatively, as due to Agent Orange exposure.  

3. Entitlement to service connection for gout, claimed as secondary to service-connected DM; or alternatively, as due to Agent Orange exposure.  

4. Entitlement to service connection for degenerative joint disease (hereinafter "DJD") of the thoracic spine, claimed as secondary to service-connected DM; or alternatively, as due to Agent Orange exposure.  

5. Entitlement to service connection for right ankle arthritis, claimed as secondary to service-connected DM; or alternatively, as due to Agent Orange exposure.  

6. Entitlement to service connection for left knee arthritis, claimed as secondary to service-connected DM; or alternatively, as due to Agent Orange exposure.  

7. Entitlement to a disability evaluation in excess of 20 percent for service-connected DM.  


REPRESENTATION

Veteran represented by:	Alabama Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to September 1970. The service records reveal that he had combat service in the Republic of Vietnam (hereinafter "Vietnam ") from October 1968 to October 1969.  

This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a January 2008 rating decision, issued in February 2008 by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Montgomery, Alabama.  

The Veteran testified at a videoconference hearing at the RO before the undersigned Veterans Law Judge (hereinafter "VLJ") in March 2013.  A transcript of this proceeding is of record.  

In July 2013, the Board remanded the case to the RO via the Appeals Management Center (hereinafter "AMC") in Washington, DC in order to obtain outstanding VA treatment records, and to schedule VA examination and medical opinion.  The post-remand record shows substantial compliance with the Board's directives.  See Stegall v. West, 11 Vet.App. 268 (1998); Dyment v. West, 13 Vet.App. 141 (1999).  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA to ensure a complete assessment of the evidence.  Additional, pertinent medical evidence was added to the file in Virtual VA in November 2012, July 2013 and August 2013, which was considered by the AMC in an August 2013 supplemental statement of the case (hereinafter "SSOC").  As such, the Board will proceed to consider the appeal on the merits.  See 38 C.F.R. § 20.1304(c) (2013).  


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate the matters on appeal have been accomplished.  

2. The Veteran is presumed to have been exposed to herbicides while on active duty in Vietnam.  

3. The Veteran is shown to have engaged in combat with the enemy during his period of active duty in Vietnam.  

4. Morbid obesity did not manifest in service; and any current morbid obesity is not causally or etiologically related to his military service, or to a service-connected disability.  

5.  Sleep apnea did not manifest in service; and any current sleep apnea is not causally or etiologically related to his military service, or to a service-connected disability.  

6. Gout did not manifest in service; and any current gout is not causally or etiologically related to his military service, or to a service-connected disability.  

7. The Veteran does not have currently diagnosed DJD of the thoracic spine that manifested in service; DJD of the thoracic spine did not manifest within one year of service separation; and any current DJD of the thoracic spine is not causally or etiologically related to his military service, or to a service-connected disability.  

8. The Veteran does not have currently diagnosed right ankle arthritis that manifested in service; right ankle arthritis did not manifest within one year of service separation; and any current right ankle arthritis is not causally or etiologically related to his military service, or to a service-connected disability.  

9. The Veteran does not have currently diagnosed left knee arthritis that manifested in service; left knee arthritis did not manifest within one year of service separation; and any current left knee arthritis is not causally or etiologically related to his military service, or to a service-connected disability.  

10. The preponderance of the evidence shows that the Veteran's DM is manifested by no more than symptoms requiring insulin, an oral hypoglycemic agent, and a restricted diet.  


CONCLUSIONS OF LAW

1. The criteria for establishing service connection for morbid obesity have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013).  

2. The criteria for establishing service connection for sleep apnea have not been met.  38 U.S.C.A. §§ 1101, 1110,  5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013).  

3. The criteria for establishing service connection for gout have not been met.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2013).  

4. The criteria for establishing service connection for DJD of the thoracic spine, to include on a presumptive, direct and/or secondary basis, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).  

5. The criteria for establishing service connection for right ankle arthritis, to include on a presumptive, direct and/or secondary basis, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).  

6. The criteria for establishing service connection for left knee arthritis, to include on a presumptive, direct and/or secondary basis, have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013).  

7. The criteria for a disability evaluation in excess of 20 percent for DM have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (hereinafter "DC") 7913 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code (hereinafter "38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations (hereinafter "38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (hereinafter "the Federal Circuit") (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (hereinafter "the Court") (as noted by citations to "Vet.App.").  

The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction).  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

A Veteran bears the "evidentiary burden' to establish all elements of a claim, including the nexus requirement."  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  The Board's duty is to first determine the probative value of all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the probative value of the evidence regarding all material elements of a claim.  See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet.App. 428, 433 (2011); see also 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").  A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'"  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).  

Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may assign greater probative to one medical opinion over by providing an adequate statement of reasons or bases for doing so.  See Owens v. Brown, 7 Vet.App. 429, 433 (1995); Willis v. Derwinski, 1 Vet.App. 66, 70 (1991).  A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008).  

In making all determinations, the Board must also fully weigh the probative value of the lay evidence of record against the remaining evidence of record.  See King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012).  If credible, competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a).  Thus, a layperson is competent to report on the onset and continuity of his symptomatology.  See Kahana, 24 Vet.App. at 438; Layno, 6 Vet.App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge).  Moreover, lay evidence must not be categorically dismissed as incompetent evidence of medical causation merely because it is lay evidence.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  Rather, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence of a layperson, (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.  See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana, 24 Vet.App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Jandreau, 492 F.3d 1367-77; see also Kahana, 24 Vet.App. at 438, J. Lance dissenting; Robinson v. Shinseki, 312 Fed. Appx. 336, 339 (Fed. Cir. 2009) (nonprecedential).  

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet.App. 518 (1996).  

The Duties to Notify and Assist

The Veterans Claims Assistance Act (hereinafter "VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.App. 183 (2002).  Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  See 38 C.F.R. § 3.159(b)(1).  

In a freestanding claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

Pre- and post-adjudication VCAA letters dated in July 2003, February 2005 and June 2007, collectively explained the evidence necessary to substantiate the claims, and informed the Veteran of his and VA's respective duties for obtaining evidence.  These letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet.App. 473, 490-491 (2006).  Also, these letters advised the Veteran of the type of evidence needed to substantiate the claim for an increased rating, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned, in compliance with Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008).  As noted, the claim was readjudicated in the August 2013 SSOC.  Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency).  

Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet.App. 112, 118 (2007).  

VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims.  The claims file contains Social Security Administration (hereinafter "SSA") records, in-service and post-service medical treatment records, include private treatment records from practitioners the Veteran has identified, and reports of VA examinations (August 2003, May 2005, August 2005, July 2007, May 2012 and July 2013).  With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet.App. 303, 312 (2007).  These VA examination reports generally reflect review of the claims file, examination of the Veteran, and clear description and evaluation of his DM, and an assessment of the etiological relationship between the claimed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis, and the Veteran's service and service-connected DM.  In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issues decided below.  

At the March 2013 hearing, the undersigned VLJ and representative for the Veteran outlined the issues on appeal and engaged in a colloquy as to substantiation of the claims, including identifying relevant types of evidence.  Overall, the hearing was legally sufficient and the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant v. Shinseki, 23 Vet.App. 488 (2010).  

The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues have been obtained and the case is ready for appellate review.  The Board additionally finds that general due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2013).  

The Merits of the Claim-Service Connection

The Veteran essentially contends that he developed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis secondary to his service-connected DM.  He alternatively asserts that these disabilities are a result of exposure to herbicides, including Agent Orange, while serving in Vietnam.  He has not indicated that he sustained in-service injury to his thoracic spine, right ankle, or left knee, and has not argued that he experienced morbid obesity, sleep apnea, or gout while in service, and the evidence does not establish otherwise.   

Having carefully considered the Veteran's contentions, in light of the evidence of record and the applicable law, the Board finds that the preponderance of the evidence is against these claims and they must be denied.  38 U.S.C.A. § 5107(b); Alemany v. Brown, 9 Vet.App. 518 (1996); Brown v. Brown, 5 Vet.App. 413 (1993) (under the "benefit-of-the-doubt" rule, only where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue).  Currently diagnosed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis or left knee arthritis did not first manifest in service; and any current morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis or left knee arthritis are not causally or etiologically related to his military service or to the service-connected DM.  Moreover, the Veteran's DJD of the thoracic spine, right ankle arthritis and left knee arthritis did not manifest within one year of separation from service.  Also, the Veteran is presumed to have been exposed to herbicides during his Vietnam service, but there is no competent, credible evidence linking that exposure to his morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis or left knee arthritis.  

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet.App. 1 (1999); 38 C.F.R. § 3.303(a).  

For injuries that are alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection.  VA regulations provide that in the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of service, even though there is no official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. §  3.304(d).  

As noted, the service record confirms that the Veteran had combat service.  However, the reduced evidentiary burden only applies to the question of service incurrence, and not to the question of either current disability or nexus to service, both of which generally require competent medical evidence.  See Brock v. Brown, 10 Vet.App. 155, 162 (1997); Libertine v. Brown, 9 Vet.App. 521 (1996); Beausoleil v. Brown, 8 Vet.App. 459, 464 (1996).  

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  If a disease listed in 38 C.F.R. § 3.309(a) is shown to be chronic in service, 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).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time.  Id.  

If chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

The Board notes that arthritis is a disease listed under 3.309(a).  Thus, the statutory presumption under 38 C.F.R. §§ 3.307, 3.309 do apply with respect to the Veteran's claims for DJD of the thoracic spine, right ankle arthritis and left knee arthritis in this case.  However, as discussed in detail below, the earliest records showing evidence of any type of arthritis were dated in 1988, which is more than one year of separation from service.  

Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

VA regulations provide that a veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.  38 C.F.R. § 3.307(a)(6)(iii).  In the Veteran's case, service personnel records confirm the Veteran served in the Republic of Vietnam from October 1968 to October 1969, thus he is entitled to a presumption of herbicide exposure.  

The following diseases are deemed associated with herbicide exposure, under current VA law: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, Type II diabetes, Hodgkin's disease, ischemic heart disease (including but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  The foregoing diseases shall be service connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. §§ 501(a), 1116; 38 C.F.R. § 3.309 (e).  

The Board here observes that the Veteran's diagnosed morbid obesity, sleep disorder, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are not listed among those disorders for which service connection may be presumptively warranted based upon exposure to certain herbicide agents.  

Notwithstanding the foregoing, the Veteran may still establish service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet.App. 164, 167 (1999).  "Of particular relevance to an analysis of medical evidence supporting such a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner."  Polovick v. Shinseki, 23 Vet.App. 48, 53 (2009).  A statistical correlation between Agent Orange and a disease not on the presumptive list may not be the only basis for a positive nexus opinion; it may be part of the analysis, but the entirety of the analysis provided by the medical professional must be weighed and considered.  Polovick, 23 Vet.App. at 53-54.  

The National Academy of Sciences (hereinafter "NAS") periodically undertakes studies to ascertain whether the diseases discussed by NAS should be added to the list of diseases that are presumed to be incurred or aggravated by service.  See Federal Register of May 20, 2003 (see 68 Fed. Reg. 27630).  

However, when the NAS does not find such a presumptive connection, the law provides that "presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid."  38 C.F.R. § 3.303(d) (2013).  

Stated alternatively, the presumptive provisions and their underlying rationale as provided by NAS may not, by law, foreclose the establishment of direct service connection for the disorders that are not found to be presumptively linked to military service.  

A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b), effective October 10, 2006.  See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006).  See also Allen v. Brown, 7 Vet.App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet.App. 34, 39 (1991).  Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet.App. at 448.  

A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability.  Velez v. West, 11 Vet.App. 148, 158 (1998).  See also Wallin v. West, 11 Vet.App. 509, 512 (1998) and McQueen v. West, 13 Vet.App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability).  

In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability.  Wallin v. West, 11 Vet.App. 509, 512 (1998).  

The Veteran has not asserted, and the record fails to establish, that he is entitled to morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis on a direct basis.  In this regard, as discussed below, although the Veteran has been diagnosed with these disorders well after his separation from service, which meets the first element of a service connection claim, see Hickson, 12 Vet.App. at 253, there is no clinical or lay evidence that shows in-service complaints and injury sufficient to establish that the Veteran had chronic conditions of morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis or left knee arthritis during service that establishes chronicity during service and continuity of symptoms after service.  Moreover, the passage of so many years between his service separation and the medical documentation of his claimed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis is evidence against the claims.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Initially, the Board finds that the following facts are not in dispute. The service treatment records generally show that the Veteran was treated for an injury to the right foot in April 1969, and that on Report of Medical History for the purpose of separation from service, dated in June 1970, the Veteran indicated that he experienced fluctuation in weight, back trouble, cramps in his legs, and joint pain.  These records are otherwise without findings of any obesity, sleep disorder, gout, DJD of the thoracic spine, right ankle arthritis or left knee arthritis. 

There is no evidence of arthritis within one year of service separation. 

As noted, the clinical record demonstrates evidence of current disability, which meets the first element of a service connection claim.  Hickson, 12 Vet.App. at 253.  In this regard, private treatment records from "Dr. Brunson," dated from 1988 to 2000, reflect findings of and treatment for gout in the left foot; pain in the right foot; left foot and ankle pain; fatigue; obesity; acute gouty arthritis; joint pain and swelling in the ankles; chronic back pain; myalgia; arthralgia; disorder of arousal, probably narcolepsy and excessive sleepiness.  

Private treatment records from "Pulmonary Medicine Associates," dated from 2003 to 2004, show complaints of hypersomnia with apnea and diagnosis of obstructive sleep apnea.  

In November 2004, a private physician, "Dr. Carter," reported that the Veteran was being treated for difficult to control diabetes, morbid obesity, chronic gout, chronic hypersomnolence secondary to obstructive sleep apnea and DDD of the thoracic spine.  In May 2005, Dr. Carter provided a medical opinion, in which it was noted that the Veteran had DM that was controlled by medication.  He also had foot pain and diabetic neuropathy related to his DM, which was based on in-office testing and decreased sensation in the feet.  Dr. Carter observed that the Veteran was morbidly obese, which limited his mobility, and that he had DDD of the thoracic spine, which also limited his ability to perform a sedentary job.  Dr. Carter indicated that the Veteran had hypersomnolence from obstructive sleep apnea, which he precluded him from driving a car.  

VA treatment records, dated from 2002 to 2013, reveal a past medical history of ankle surgery, and treatment for morbid obesity, uncontrolled diabetes, sleep apnea, degenerative disc disease (hereinafter "DDD") of the thoracic spine, gouty arthritis, back pain, arthritis pain and numb knees.  

In June 2007, the Veteran's spouse submitted a statement attesting to the decline in his physical health due to his DM.  She indicated that the Veteran was in a great deal of pain due to his legs and back, and that he had sleep apnea due to his psychiatric disability.  The Veteran's former fellow-service member also submitted a statement at that time, and reported observations of the Veteran being unable to walk, and having severe cuts and bruises on his legs, arms, body and face, which were caused by falls that he experienced due to his physical pain.  Also, the Veteran submitted a statement in June 2007, in which he reported that he experienced severe arthritis in his hands, feet, ankles and knees; chronic gout; DDD of the thoracic spine; morbid obesity; and sleep apnea, which were secondary to his DM and which he believed were triggered by exposure to Agent Orange.  

A July 2007 VA general examination report reveals the Veteran reported a history of right ankle surgery, date unknown.  On examination of the musculoskeletal system, the examiner noted there was pain in the feet and knees, but there were no flare-ups of joint disease.  The examiner indicated that there was lower lumbar pain, but no evidence of intervertebral disc syndrome, or flare-ups of spinal disease.  The Veteran was observed to have joint swelling in the right ankle and gout in the great right toe; however, there was no evidence of joint ankylosis, joint abnormality, inflammatory arthritis, abnormalities of the spinal muscle, or spinal ankylosis.    

During his March 2013 hearing testimony, the Veteran asserted that his sleep disorder began in Vietnam, when he was exposed to combat, and when he dreamt of rocket and heavy artillery fire attacks.  His spouse noted that he stopped breathing during the night and snored loudly, which required the use of a CPAP machine since approximately 1998.  The Veteran's representative noted that the Veteran had been diagnosed with sleep apnea, and the Veteran indicated that he was told by a DM specialist in 2006 that his sleep apnea was directly caused by his DM.  The Veteran reported that his inability to exercise due to his DM caused him to gain weight.  He noted that he was constantly put on different diets and an exercise program to treat his morbid obesity, but that his joint problems prevent him from exercising.  He also reported that he was diagnosed with gout by a private practitioner, and that he experienced problems with excessive fluid in his left toe, and pain in his hands, shoulders, neck and back because of his gout.  He indicated that his DM doctor told him that his gout was caused by his DM.  As for the back, ankle and knee problems, the Veteran argued that all three of these disabilities were secondary to the DM.  However, he also acknowledged that his problem began with his right ankle after he broke it, and it kept getting worse and would not heal.  He indicated that he then began to experience problems in his left knee "and then it got into [his] shoulders, [his] arms, and [his] hands," and that he had a very severe case of neuropathy, along with bursitis and arthritis in his extremities.  He denied that VA or any other doctor had prescribed him a back brace, a knee brace or an ankle brace, but noted that these three disabilities were evaluated by VA, and that it was noted that he had excessive swelling in all of his limbs.  The Veteran described constant back pain, which he initially believed might have been related to his kidney problems since he experiences severe kidney problems.  During the testimony the undersigned VLJ requested that the Veteran explain what type of sleep disorder he had been experiencing.  The Veteran clarified that his sleep apnea was the main disability for which he was seeking compensation, but that he also experienced sleep problems related to his service-connected psychiatric disability.  The Veteran also testified that he believed his DM was directly related to his Agent Orange exposure in Vietnam, and alluded to the fact that he believed his morbid obesity, sleep disorder, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis were related to the Agent Orange exposure as well.  

More recently, in July 2013, the Veteran underwent a VA examination and medical opinion, in which the examiner opined that it was less likely than not that the Veteran's morbid obesity, sleep disorder, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are proximately due to or the result of the Veteran's service-connected DM.  As for morbid obesity, the examiner explained that obese patients are more likely to develop DM, and that treatments of obesity may be accomplished with dietary modifications.  The examiner observed that a VA treatment record, dated in April 2006, shows that the Veteran noted he ate sweets when his blood sugar was good.  The examiner indicated that non-weight bearing exercises such as swimming, elliptical or stationary bikes might also have been employed to offset the Veteran's obesity.  The examiner noted that private treatment records, dated in May 2005, reveal that the Veteran had a history of morbid obesity, and that his chronic back pain and hypersomnolence were interfering with activity at the time.  When asked to comment on the likelihood that the Veteran's morbid obesity is a manifestation of his DM and complications due to changes in medication regimen over the years or due to his limitations regarding exercise, the examiner noted that a review of a VA treatment record dated in February 2002 shows the Veteran was on Glucophage for the management of his DM, which is usually associated with weight loss.  The examiner noted that diabetic medications, such as insulin, which the Veteran began to take in 2006, may have a modest effect on weight gain, but that the Veteran's weight was already 340 pounds by the time of the February 2002 documentation when the Veteran was on Glucophage that usually results in decreased weight.  The examiner also noted that the Veteran's weight gain might have been mitigated by the Veteran's engaging in dietary modifications and non-weight bearing exercises.  The examiner indicated that the Veteran's right ankle fracture might have also likely played a part in his inability to participate in weight bearing exercises, and his hypothyroidism, diagnosed in 1990, might have also affected his weight.  The examiner concluded that the causation of the Veteran's morbid obesity is likely multifactorial, but that DM or the medications used for DM are not likely the major causes of his obesity.  The examiner observed that the Veteran was already in the obesity range prior to the initiation of insulin, and that DM and/or obesity alone do not preclude all forms of physical activity.  

As for gout, the examiner observed that gout is not a usual complication of DM and may be caused by excess uric acid that is not likely the result of DM.  The examiner cited to a July 2013 treatment record, which indicated that the Veteran had an elevated uric acid level of 8.4.  As for DJD of the thoracic spine, and right ankle and left knee arthritis, the examiner opined that the likely cause of the Veteran's thoracic spine disability is due to overuse or trauma of the respective area.  The examiner indicated that DM does not usually lead to arthritis in various joints, especially in an asymmetrical fashion.  The examiner also noted that the Veteran had a history of surgery for a right ankle fracture.  As for the sleep disorder, the examiner observed the Veteran was diagnosed with sleep apnea around 2004, but that sleep apnea was not a usual complication of DM, although obesity was a risk factor.  The examiner noted that a baseline level of severity for the Veteran's claimed disabilities could not be determined because there was insufficient medical evidence, but concluded that, regardless of an established baseline, the Veteran's claimed disabilities were not at least as likely as not aggravated beyond their natural progression by the service-connected DM.  The examiner explained that the etiology and treatment of these disabilities may occur and be treated irrespective of DM, and that these disabilities have not likely been affected by complications associated with DM.  

The Board finds the July 2013 VA examiner's reliance on VA and private treatment records, which show that the Veteran was morbidly obese prior to being treated with insulin for his diabetes, to be highly credible as they were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnoses or treatment.  Rucker v. Brown, 10 Vet.App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  Thus, the Board finds the probative evidence of record weighs against a finding that the morbid obesity was caused by changes in the Veteran's DM medication and fitness level.  

The Board finds that the July 2013 VA examination report contain adequate discussions of the Veteran's current morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis, and competently and credibly address the etiology of his symptomatology and diagnosed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis.  Absent a challenge to the expertise of an examiner, the Board may assume the competence of VA examiners.  Cox v. Nicholson, 20 Vet.App. 563, 569 (2007); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (finding that where a Veteran does not challenge a VA medical expert's competence or qualifications, VA need not affirmatively establish that expert's competency).  

Thus, the most persuasive and competent evidence of record does not support the Veteran's claims of entitlement to service connection for an morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis.  See Hayes v. Brown, 5 Vet.App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  

The Veteran, his spouse and his fellow former service-member are competent to testify in regard to the onset and continuity of his morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis symptomatology.  Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Falzone v. Brown, 8 Vet.App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet.App. 466 (1991).  Also, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.  In this case, the question of whether the Veteran's presently diagnosed morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are related to his service-connected DM is a complex medical question outside the competence of a layperson.  His own opinion and those of his spouse and fellow former service-member are therefore not competent evidence of a nexus.  See Kahana, 24 Vet.App. at 433, n.4; Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  Thus, the Board assigns little probative value to these statements.  

Therefore, the Board finds the July 2013 VA examination report is the most competent evidence of record and weigh greatly against the claims.  The examiner has discussed, at length, the Veteran's symptomatology and how his assertion that his morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are secondarily related to his service-connected DM is unlikely based on the record.  The Board finds this report provides reasoned medical opinion based on review of the pertinent records and relevant medical history, and constitutes highly probative evidence that the Veteran's current morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are not related to his service-connected DM.  See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007); Caluza, 7 Vet.App. at 511-512.  Further, the opinion is supported by the clinical findings throughout the record, which show that the Veteran's right ankle was injured after service, his morbid obesity existed prior to his being treated with insulin for his DM, and his sleep apnea was likely related to his obesity.  These records failed to establish that morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis are related to the service-connected DM.  

Although the VA examiners' opinions do not expressly discuss the lay reports of the Veteran having morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis that are related to his DM, this omission is nonconsequential for several reasons.  First, as a general matter, a medical examiner is not required to comment on every favorable piece of evidence in a claims file.  See Monzingo v. Shinseki, 26 Vet.App. 97, 105-06 (2012).  Furthermore, for the reasons discussed above, the lay statements asserting a continuity of symptoms are found not competent to relate the Veteran's current morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis to his service, nor, as discussed, are they found to be credible.  Also significant, an overall reading of the July 2013 examiner's opinion is that it is very unlikely that any current morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis is related to his military service.  Any deficiency in the VA examiner's factual foundation or explanation is consequently immaterial.  See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale); Acevedo v. Shinseki, 25 Vet.App. 286, 293-942012); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).  Accordingly, the probative value of the VA examiners' opinions is not materially diminished in this respect.  See Nieves-Rodriguez, 22 Vet.App. at 304.  Such a medical opinion, which is factually accurate, fully articulated, and based on sound reasoning, carries significant weight.  See Nieves-Rodriguez, 22 Vet.App. at 304.  The Board, in its own lay capacity (as with the Veteran), is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so.  See, e.g., Monzingo, 26 Vet.App. 97, 106 (2012).  

Thus, the Board finds there is no competent clinical evidence to link the Veteran's morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and/or left knee arthritis to his service-connected DM.  In this regard, the July 2013 examination opinion, which is the only competent medical opinion of record addressing the question of etiology on a secondary basis, does not support any of the Veteran's claims.  Therefore, service connection on a secondary basis is not warranted.  38 C.F.R. § 3.310; Wallin, 11 Vet.App. at 512.  

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  However, doctrine is not applicable in this case because the preponderance of the evidence is against all six of the Veteran's claims for service connection on a presumptive, direct and secondary basis.  See Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).  

Accordingly, the preponderance of the evidence is against the Veteran's claims for a morbid obesity, sleep apnea, gout, DJD of the thoracic spine, right ankle arthritis and left knee arthritis, on a presumptive, direct or secondary basis.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

The Merits of the Claim-Increased Ratings

On April 2, 2007, the Veteran filed a claim for entitlement to an increased rating for his service-connected DM.  He contends that he is entitled to a disability rating in excess of 20 percent for the DM.  See 38 C.F.R. §4.119 (2013).  The Board must analyze the evidence from the earliest possible date upon which such increase could be awarded, namely, one year prior to the RO's receipt of his April 2, 2007, increased rating claim.  See 38 C.F.R. § 3.400(o)(2); accord Hart v. Mansfield, 21 Vet.App. at 509-10 (2007).  

After a full review of the record, and as further explained below, the Board finds that the preponderance of the evidence weighs is against the assignment of an increased evaluation for the service-connected DM.  

Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity.  Individual disabilities are assigned separate Diagnostic Codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2013).  When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes.  Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

In evaluating the severity of a particular disability it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet.App. 282 (1991).  Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet.App. 55, 58 (1994).  However, staged ratings are appropriate for an increased rating claim, if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet.App. 505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2013).  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet.App. 204, 207-08 (1994).  

Ratings shall be based, as far as practicable, upon the average impairments of earning capacity.  However, from time to time, VA will readjust this schedule of ratings in accordance with experience.  To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  

All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered.  Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991).  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  See Butts v. Brown, 5 Vet.App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, his current diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992).  Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability.  38 C.F.R. § 3.102; Mittleider v. West, 11 Vet.App. 181, 182 (1998) (per curiam).  However, "disability ratings are assigned based on a 'condition,' rather than on any symptoms of a particular condition."  Cullen v. Shinseki, 24 Vet.App. 74, 80-81, 84 (2010).  Thus, separate disability ratings under the same diagnostic code are not assignable "for different symptoms of an underlying spinal condition, such as pain, ankylosis, or muscle spasms."  Id.  In other words, "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise."  Id.  However, separate ratings may be assignable under different diagnostic codes where a disability involves distinct conditions.  Id.  

It is important to note generally that the joining of schedular criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except in the case of diagnostic codes that use successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.  Melson v. Derwinski, 1 Vet.App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met).  See also Tatum v. Shinseki, 23 Vet.App. 152 (2009) (indicating the joining of criteria by the conjunctive "and" in a diagnostic code does not always require all criteria to be met, except, as here, in the case of a diagnostic code that uses successive rating criteria, where assignment of a higher rating requires that elements from the lower rating are met.)  

VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban v. Brown, 6 Vet.App. 259, 262 (1994).  However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability.  38 C.F.R. § 4.14 (2013).  

The Veteran's service-connected DM is currently rated pursuant to 38 C.F.R. § 4.119, under the General Rating Formula for Diseases and Injuries of the Endocrine System, Diagnostic Code 7913.  The Schedule provides that assignment of a 20 percent rating is warranted for diabetes mellitus requiring insulin and a restricted diet, or; an oral hypoglycemic agent and a restricted diet.  A 40 percent rating is warranted for diabetes mellitus requiring insulin, a restricted diet, and regulation of activities.  A 60 percent rating is warranted 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 rated.  38 C.F.R. § 4.119, DC 7913 (2013).  Complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent rating.  Noncompensable complications are considered part of the diabetic process.  38 C.F.R. § 4.119, DC 7913 at Note 1 (2013).  

The Board notes that the Veteran is currently in receipt of service connection for congestive heart failure, nephropathy with hypertension, diabetic peripheral neuropathy of the left lower extremity, diabetic peripheral neuropathy of the right lower extremity, hypertension, diabetic peripheral neuropathy of the left upper extremity, diabetic peripheral neuropathy of the right upper extremity and erectile dysfunction, which have all been determined to be associated with DM.  The Board further notes that only the service-connected erectile dysfunction has been assigned a noncompensable evaluation, but the remaining service-connected disabilities have been assigned ratings ranging from 10 percent to 100 percent.  

An April 2006 VA treatment record reflects that the Veteran was hospitalized for hyperosmolar nonketotic state, acute renal failure, hyperkalemia and obesity.  While in the clinic the Veteran reported high blood sugar levels since November 2005, and that despite having his diabetes medication increased, his sugars continued to remain high.  The VA physician observed that the Veteran reported a good diabetic diet, and had an unintentional 50 pound weight loss over the past 6 months secondary to decreased appetite.  A review of symptoms was positive for decreased appetite, weight loss, blurry vision, shortness of breath, chest pain, lower extremity edema, diarrhea and nausea, but was otherwise negative.  The hospital course included treatment for diabetes with hyperosmolar nonketotic state, acute renal failure, hyperkalemia, cardiovascular problems, obesity, hypothyroidism and diarrhea.  The VA physician noted that the Veteran was having symptoms of a hyperosmolar state including increased urine output and blurry vision, along with elevated blood sugar levels, since his medications were adjusted in November 2005.  It was noted that he did not have any urine serum ketones, but his sugar levels trended down to the 300's to 400's after he was aggressively treated with intravenous fluids and insulin.  The VA physician indicated that the Veteran's acute renal failure was secondary to volume contraction from his hyperosmolar state, as well as baseline chronic kidney disease most likely from poorly controlled DM.  The hyperkalemia was felt to be most likely secondary to the acute renal failure.  

A July 2007 VA examination report indicates that the Veteran complained of progressively worsening DM, for which he had been prescribed Avandia and Metformin.  The examiner noted there was no history of hospitalization or surgery associated with the DM; no episodes of ketoacidosis or hypoglycemic reactions; and no restriction in ability to perform strenuous activities.  However, there was a history of being instructed to follow restricted or special diet; and there were cardiac symptoms related to DM that caused symptoms of shortness of breath, fatigue and weakness.  

In May 2012, the Veteran underwent a second VA examination, in which he reported a history of treatment for his DM, including management by restricted diet, and prescribed insulin, more than 1 injection per day.  The examiner indicated that the Veteran did not require regulation of his activities as part of the medical management of his DM.  The examiner noted that the Veteran visited his DM care provider for episodes of ketoacidosis or hypoglycemic reactions less than 2 times per month; had no hospitalizations for episodes of ketoacidosis over the previous 12 months; had no episodes of hypoglycemia requiring hospitalization over the previous 12 months; had no progressive unintentional weight loss attributable to DM; and had no progressive loss of strength attributable to DM.  

During his March 2013 hearing testimony, the Veteran and his spouse reported that he could "hardly do anything" because he was "just totally disabled."  
When asked if his diabetes was well controlled by insulin, the Veteran responded that he was controlling his blood sugar, but it still fluctuated quite frequently, and at times was out of control.  He also indicated that he was unable to exercise due to his DM led to weight gain, but acknowledged that he was advised to get more exercise.  He noted that his physicians have stressed the importance of walking even if he could not perform any other physical activity, and that he had three exercise machines, including a treadmill, that he used frequently.  He reported that he also had lifted weights until he became too disabled to do so.  Later on in his testimony, the Veteran reiterated that he was advised by his physician to do as much exercise as his body could possibly stand.  

More recently, in July 2013, the Veteran underwent a new VA DM examination, during which it was noted that the Veteran had been diagnosed with DM since 1992, and that his DM had been managed by restricted diet and prescribed insulin of more than 1 injection per day.  It was noted that he did not require regulation of activities as part of the medical management of his DM.  Also, the examiner indicated that the Veteran was treated by his DM care provider for episodes of ketoacidosis or hypoglycemic reaction at a rate of less than 2 times per month; he was not hospitalized for episodes of ketoacidosis or hypoglycemic reactions, or for hypoglycemia; he did not have progressive unintentional weight loss attributable to DM; and he did not have progressive loss of strength attributable to DM.  The complications of his DM included diabetic neuropathy and diabetic nephropathy or renal dysfunction; however, no other pertinent physical findings or complications, conditions, signs and/or symptoms related to the DM were found on examination.  The examiner opined that the Veteran's DM did not impact his ability to work.  

The medical evidence of record shows that the Veteran's diabetes mellitus is manifested by symptoms requiring insulin, an oral hypoglycemic agent, and a restricted diet.  However, the medical evidence of record does not show that the Veteran's DM has ever required regulation of activities.  Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.  38 C.F.R. § 4.119, DC 7913 (2013).  The medical evidence of record does not show that the Veteran has been instructed by a physician to regulate or restrict his physical activities due to problems controlling his blood sugar.  In addition, the evidence of record shows that the Veteran is actively encouraged to engage in exercise.  In fact, a May 2007 VA treatment record reflects that the Veteran was instructed to exercise 30 minutes daily along with sticking to his diet.  Also, by the Veteran's own testimony, he walks frequently on his treadmill despite being unable to lift weights, and has been advised by a physician to continue to perform as much exercise as his body will allow.  Accordingly, the preponderance of the evidence of record shows that the Veteran's activities have not been regulated as a result of his DM.  Therefore, the Veteran's service-connected DM does not meet the criteria for a 40 percent rating under the provisions of DC 7913.  Further, without first establishing that the Veteran required the regulation of activities, he would not be entitled to ratings of 60 percent or 100 percent for his DM, as this requirement is a component of evaluating the severity of DM for 60 percent and 100 percent evaluations.  

The Board acknowledges that an SSA Disability Determination shows the Veteran was found to be disabled since 2004 based on his DM, and on a psychiatric disability.  However, on physical evaluation conducted in conjunction with this determination, it was noted that the Veteran was capable of occasionally lifting and/or carrying 20 pounds; was capable of frequently lifting and/or carrying 10 pounds; was capable of standing and/or walking (with normal breaks) for a total of about 6 hours in an 8-hour work day; was capable of sitting (with normal breaks) for a total of about 6 hours in an 8-hour work day; and was limited in his ability to push and/or pull in his lower extremities.  Further, it was determined that the severity or duration of the Veteran's symptoms were disproportionate to the expected severity or expected duration on the basis of the Veteran's claimed medically determinable impairments.  The evaluator noted that the Veteran's allegations were reviewed and considered, and that the Veteran had confirmed diagnoses of gout, DM, high blood pressure, arthritis and sleep apnea.  The evaluator observed that the Veteran's activities of daily living indicated that he had some limited mobility due to his physical impairments, and that he was capable of a light level of work.  

While the Veteran and his spouse are competent to state that he has been made totally disabled by his DM to the point where he can hardly perform any activities, see Layno v. Brown, 6 Vet.App. 465, 469 (1994), the objective medical evidence of record suggests otherwise.  He has been repeatedly advised to continue with an exercise program because of his DM, and all VA examination reports, the SSA determination and the various VA treatment records show that part of his DM treatment involves increasing his activity level, not decreasing it.  Moreover, the Veteran contradicts himself when he argues that his DM causes him to regulate his activities, because he has testified that he walks frequently on a treadmill to get exercise.  Further, he has failed to identify specific ways in which he is physically impaired, and has only reported that he is generally too disabled to perform any activities and cannot lift weights, but has not identified how his DM has caused the impairment.  

In consideration of the evidence of record, the Board finds that the July 2007, May 2012 and July 2013 VA examination reports are the most persuasive and probative evidence concerning the claim.  See Hayes v. Brown, 5 Vet.App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board).  

Not only are these reports the only medical evidence of record that specifically evaluate the Veteran's DM, and directly addresses whether or not he must regulate his activities due to his DM, and whether or not he experiences ketoacidosis or hypoglycemic reactions requiring hospitalizations, there is no competent and credible evidence of record to show otherwise.  Although the VA examiners failed to discuss the Veteran's assertion that he is too disabled to perform any activities, the Board does not find this failure to significantly diminish the probative value of these opinions insofar as the remaining clinical record also establishes that the Veteran has only been encouraged to exercise and has not been told to avoid strenuous occupational and recreational activities due to his DM.  As noted, as a general matter, a medical examiner is not required to comment on every favorable piece of evidence in a claims file.  See Monzingo v. Shinseki, 26 Vet.App. 97, 105-06 (2012).  Any deficiency in the VA examiner's factual foundation or explanation is consequently immaterial.  See Monzingo v. Shinseki, 26 Vet.App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale); Acevedo v. Shinseki, 25 Vet.App. 286, 293-942012); see also Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).  Such medical opinions, which are factually accurate, fully articulated, and based on sound reasoning, carry significant weight.  See Nieves-Rodriguez, 22 Vet.App. at 304.  The Board, in its own lay capacity (as with the Veteran), is not otherwise qualified to call into question the VA examiner's medical judgment, nor does the Board find any reason to do so.  See, e.g., Monzingo, 26 Vet.App. 97, 106 (2012). 

As noted, it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence.  See Owens v. Brown, 7 Vet.App. 429 (1995); Gabrielson v. Brown, 7 Vet.App. 36 (1994); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993).  Also, the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."  Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997).  

The Board has considered whether additional "staged" ratings are appropriate for the service-connected DM.  See Hart v. Mansfield, 21 Vet.App. 505 (2007).  The record does not support assigning different percentage ratings for the service-connected DM during this period of the appeal.  

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the medical evidence does not support a disability evaluation in excess of 20 percent for service-connected DM, the preponderance of the evidence is against the assignment of any higher rating and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet.App. at 53-56.  

Additional Considerations

Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.  Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it.  38 C.F.R. § 4.15.  

To afford justice in exceptional situations, however, an extraschedular rating may also be assignable.  38 C.F.R. § 3.321(b).  The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination.  See Bagwell v. Brown, 9 Vet.App. 337, 339 (1996).  This determination follows a three-step inquiry.  See Thun v. Peake, 22 Vet.App. 111, 115 (2008).  

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. Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability.  Id.  If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule.  Therefore, the assigned schedular evaluation is adequate and no referral is required.  Id.  If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id. at 115-16.  

The first two steps should be undertaken by comparing the disability picture of each service-connected disability with the criteria in the rating schedule for that disability.  The Board should compare the service-connected disability picture with the criteria in the rating schedule for that disability.  Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet.App. Mar. 27, 2013) (en banc).  Extraschedular consideration is undertaken on the basis of each individual service-connected disability.  Based on this disability-by-disability approach, the Board is not required to consider whether a veteran is entitled to referral for extraschedular consideration of his service-connected disabilities on a collective basis.  Id.  

If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet.App. 111.  

Here, the rating criteria reasonably describe the Veteran's DM levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence.  It is noted that the symptoms listed in the rating criteria are demonstrative and not exhaustive; thus, the rating criteria actually consider many other complications of DM.  See Mauerhan, 16 Vet.App. 436; see also 38 C.F.R. § 4.119.  Overall, the occupational and social impairment caused by the Veteran's DM, as described above, are accounted for by the rating criteria.  Thus, the assigned schedular evaluation is adequate.  See Thun v. Peake, 22 Vet.App. 111, 115 (2008).  Consequently, referral for extraschedular consideration is not warranted.  

Additionally, entitlement to a total disability rating based on individual unemployability due to service-connected disability (hereinafter "TDIU"), is an element of all appeals of an increased rating.  Rice v. Shinseki, 22 Vet.App. 447 (2009).  As noted, the Veteran is unemployed, and SSA records indicate that this is due in part to his DM.  However, the Board notes that the Veteran is currently in receipt of a 100 percent rating for his service-connected congestive heart failure associated with DM, effective March 22, 2008.  With respect to a derivative claim for entitlement to a TDIU, on June 7, 1999, VA's General Counsel issued VA O.G.C. Prec. Op. No. 6-99 addressing questions of whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service-connected disabilities.  Essentially, that OGC precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim.  See also Green v. West, 11 Vet.App. 472, 476 (1998); Vettese v. Brown, 7 Vet.App. 31, 34-35 (1994); and Smith v. Brown, 10 Vet.App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).  

But in view of the Court's decision in Bradley v. Peake, 22 Vet.App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion.  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (hereinafter "SMC"), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99.  

VA has a "well-established" duty to maximize a claimant's benefits.  See Buie v. Shinseki, 24 Vet.App. 242, 250 (2011); AB v. Brown, 6 Vet.App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet.App. 280 (2008).  This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114.  See Bradley, 22 Vet.App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").  Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s)  if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  See Bradley, 22 Vet.App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating).  

The Board notes that the Veteran has already been granted special monthly compensation under section 1114(s), thus further discussion of the Veteran's entitlement to SMC is rendered moot in this case.  


ORDER

Service connection for morbid obesity is denied.  

Service connection for sleep apnea is denied.  

Service connection for gout is denied.  

Service connection for DJD of the thoracic spine is denied.  

Service connection for right ankle arthritis is denied.  

Service connection for left knee arthritis is denied.  

A disability rating in excess of 20 percent for the service-connected DM is denied.  



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs