Citation Nr: 1334977 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 09-08 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a skin disorder (claimed as rashes, dermatitis, eczema, and pigment alteration), to include as due to herbicide (Agent Orange) exposure. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected type II diabetes mellitus or hypertension. 3. Entitlement to an initial disability rating greater than 20 percent for type II diabetes mellitus. 4. Entitlement to an initial disability rating greater than 10 percent for hypertension. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service in the United States Army from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and November 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Board remanded the appeal in June 2013 for further development. The case has since been returned to the Board for appellate review. In the June 2013 Board decision, the Board also adjudicated new and material evidence and increased rating issues that were previously on appeal. Thus, these issues are no longer on appeal before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2011 to 2012, which are pertinent to the present appeal. However, these records were reviewed by the RO in the October 2012 supplemental statement of the case. FINDINGS OF FACT 1. The Veteran had active service in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicides during such service. 2. The Veteran does not have a current skin disorder that manifested in service or within one year thereafter or that is related to his military service, to include his presumed herbicide exposure. 3. The Veteran's sleep apnea is not related to his military service and was not caused or aggravated by his service-connected type II diabetes mellitus or hypertension. 4. Prior to April 22, 2013, the Veteran's service-connected type II diabetes mellitus did not require insulin, restricted diet, and regulation of activities 5. As of April 22, 2013, the Veteran's service-connected type II diabetes mellitus required insulin, a restricted diet, and a regulation of his occupational and recreational activities, but he has not had episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year; twice a month visits to a diabetic care provider; and progressive loss of weight and strength. 6. The Veteran's service-connected hypertension not productive of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. A skin disorder was not incurred in active service, nor may a skin disorder be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. Sleep apnea was not incurred in service and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. The criteria for an initial evaluation in excess of 20 percent for type II diabetes mellitus for the period prior to April 22, 2013, have not been met. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.119, Diagnostic Code 7913 (2013). 4. The criteria for an initial 40 percent evaluation, but no higher, for type II diabetes mellitus have been met as of April 22, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.119, Diagnostic Code 7913 (2013). 5. The criteria have not been met for an initial evaluation in excess of 10 percent for hypertension. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in September 2007, July 2008, August 2010, October 2010, March 2011, and June 2012. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate his service connection, secondary service connection, and higher initial rating claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the September 2007, July 2008, August 2010, October 2010, and March 2011 VCAA letters provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the increased rating issues arise from disagreement with the initial evaluation following the grant of service connection for diabetes mellitus and hypertension in a May 2008 rating decision. Both the Court and the Federal Circuit Court of Appeals (Federal Circuit Court) have held that, once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also VAOPGCPREC 8-2003 (December 22, 2003). In addition, the VCAA notice letters advised the Veteran of the additional notice requirements for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (minimum notice requirements pursuant to VCAA for an increased rating claim), rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice, and rejecting Veteran-specific notice as to the effect on daily life and as to the assigned or cross-referenced diagnostic code under which the disability is rated). The outcome of these holdings is that VCAA notice for an increased rating claim does not have to be individually tailored to each Veteran's particular facts, but rather only a generic notice is required. The July 2008 and October 2008 VCAA letters were fully sufficient. In fact, the July 2008 letter provided the Veteran with a copy of the rating criteria for hypertension. In summary, the Veteran has received all required VCAA notice in this case. As to the timing of VCAA notice, the Court and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued all required VCAA notice prior to the May 2008 and November 2010 rating decisions on appeal. Thus, there is no timing error. With respect to the duty to assist, the RO has secured the Veteran's service treatment records, service personnel records, Social Security Administration (SSA) disability records, VA treatment records, several VA examination reports, and private medical evidence. For his part, the Veteran has submitted personal statements, lay statements from family, argument from his representative, and private medical evidence. He has not identified any additional, outstanding evidence that is relevant to his claims being decided herein. The Veteran was also afforded VA examinations and opinions in July 2013 that addressed the etiology of his current skin problems on a direct basis and his sleep apnea on a secondary basis. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). As will be discussed below, when considered as a whole, these examinations and opinions were thorough, supported by explanations, based on a review of the claims folder, and supported by clinical evidence of record, as well as the Veteran's own statements and allegations. As such, there is no basis for any further VA examination or opinion as to these particular issues on appeal. The July 2013 VA opinions are adequate. The Veteran was also afforded VA examinations in July 2012 in connection with his claims for an increased evaluation for his service-connected type II diabetes mellitus and hypertension. The Board also finds that these VA examinations obtained are adequate, as they were predicated on a review of the Veteran's medical history as well as on examinations and fully address the rating criteria that are relevant to rating the type II diabetes mellitus and hypertension in this case. Moreover, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected hypertension since he was last examined in July 2012. 38 C.F.R. § 3.327(a). Indeed, there is no allegation or evidence revealing any worsening of the hypertension disability since that time. In any event, the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. With regard to diabetes mellitus, the Board is granting a higher 40 percent rating based on medical evidence dated in April 2013, subsequent to the July 2012 VA examination. However, there is no basis for another VA examination for diabetes mellitus, as there is no lay allegation or clinical evidence of worsening beyond the 40 percent rating being granted here as of April 2013. Thus, there is adequate medical evidence of record to make a determination for the increased rating issues in this case. With regard to the previous June 2013 Board remand, the Board finds that the RO/AMC substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remand, the RO/AMC afforded the Veteran several VA examinations to determine the etiology of his skin and sleep apnea disorders on both a direct and secondary basis and secured SSA disability records. As such, the RO has substantially complied with the Board's instructions. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Governing Laws and Regulations for Service Connection Veterans are entitled to compensation from VA if they develop a 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." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under 38 C.F.R. § 3.303(a), service connection requires 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 between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The law also provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). The following skin disorders are associated with herbicide exposure for purposes of this presumption: chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). To warrant service connection, chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda must have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that evidence against other evidence of record in making its determination regarding the existence of service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Analysis - Service Connection for a Skin Disorder The Veteran has alleged that he was exposed to Agent Orange or other herbicides while serving in Vietnam from May 1968 to May 1969. He has maintained that his skin disorders are presumptively associated with his active service in Vietnam. He has stated that he experienced skin problems both in-service and post-service, to include rashes, dermatitis, eczema, and pigment alteration. See August 2007 claim; June 2008, December 2010, and March 2011 notices of disagreement (NODs); March 2012 VA Form 9; September 2010 Veteran's statement. Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for a skin disorder The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the present case, there is sufficient evidence that the Veteran meets the threshold criterion for service connection of a current skin disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Specifically, the July 2013 VA skin examiner diagnosed him with chronic lichenoid dermatitis. An earlier October 2011 VA dermatology note offered possible diagnoses of post-inflammatory pigment alteration, fixed drug reaction; lichenoid contact dermatitis for a hyperpigmented patch on the flank; multiple seborrheic keratoses; and an epidermal inclusion cyst on the left upper back. Thus, the Veteran clearly has current skin disorders, and the remaining question is whether the disorders manifested in service or are otherwise related to in-service herbicide exposure. The Veteran's service personnel records, including his DD Form 214, confirm that he served in the Republic of Vietnam during the Vietnam era from May 1968 to May 1969. Therefore, he is presumed to have been exposed to herbicides, including Agent Orange. 38 C.F.R. § 3.307(a)(6), 3.313(a). However, the Veteran's current skin diagnoses are not on the list of diseases associated with herbicide exposure for purposes of the presumption. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). In fact, the evidence does not demonstrate that the Veteran has chloracne or porphyria cutanea tarda, which are the only skin conditions for which 38 C.F.R. § 3.309(e) is applicable. No such diagnoses are of record. The Veteran is therefore not entitled to service connection for a skin disorder on a presumptive basis based on herbicide exposure as discussed in 38 C.F.R. § 3.309(e). If the claimed disease is not one of the presumptive diseases listed in 38 C.F.R. § 3.309(e), but exposure to an herbicide is presumed or proven by the evidence, as is the case here, the Veteran may still establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting evidence of a nexus between the disease and his exposure to herbicides during military service. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In fact, the Court has specifically held that the provisions set forth in Combee are applicable in cases involving Agent Orange exposure. Stefl v. Nicholson, 21 Vet. App. 120 (2007); McCartt v. West, 12 Vet. App. 164, 167 (1999). The Veteran's service treatment records indicate that he treated was for a skin lesion behind his left ear in April 1968. It was questioned whether this was a wart. The Veteran was later treated in June 1968 for raised, itchy bumps on his legs, thigh, buttocks, buns, and forearms. The impression was questionable erythema nodosum. He was also treated for insect bites with papular urticarial during the same month. Upon separation in October 1969, his skin examination was normal. He also denied a history of skin problems in the report of medical history. Thus, despite there being evidence of some treatment for skin problems during service, the medical and lay evidence shows that the Veteran was not diagnosed with a skin disorder at the time he separated from service in October 1969. Following his military service, private medical records dated in November 1981 document the Veteran as having a nodule under his nipples. He also had a probable ganglion cyst of the left foot in November 1996 followed by an assessment of neuroma versus ganglion cyst in January 1997. In September 2002 private medical records, the Veteran was treated for hyperpigmentation on the right side of his abdomen, and records dated in July 2003 show early cellulitis of the left arm and acanthosis nigricans versus fungal infections in the groin area. VA treatment records dated in June 2008 document a large hyperpigmented macule below the right costal margin, and the impression was large lentigo maligna. A VA dermatology outpatient note dated in October 2011 also shows that a biopsy obtained a couple of years earlier found subtle lichenoid dermatitis with some chronic fibrosis. In addition, a VA biopsy performed in July 2010 showed benign squamous mucosa with parakeratosis, but with no evidence of dysplasia or malignancy. On physical examination in October 2011, the Veteran had a hyperpigmented brown patch on the right flank with lichenification, papules on the right antecubital fossa, lacy white streaks on the buccal oral mucosa, a nodule on the left upper back, and a mass on the right side of the neck. The VA examiner noted that the hyperpigmented patch was of unknown significance, and other possible diagnoses included post-inflammatory pigment alteration, fixed drug reaction, lichenoid contact dermatitis, and lichenoid drug reaction. In a VA addendum, the assessment was a hyperpigmented patch on the flank in favor of lichenoid contact versus lichenoid eczema, extensive intraduct component on the left upper back, and apparently benign seborrheic keratosis. Following his military service, there is no lay assertion from the Veteran or clinical evidence suggesting or demonstrating continuous, ongoing skin symptomatology subsequent to his separation from service in December 1969. The first post-service evidence in the claims folder of skin problems is from 1981, which was over a decade after discharge from service. The Board has considered that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). In this case, there is no lay allegation of continuous skin symptoms since separation from service. In addition, with regard to a nexus, the Board finds that the evidence of record weighs against a finding that the Veteran's current skin disorders are related to his military service, including his presumed herbicide exposure. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Significantly, the July 2013 VA skin examiner reviewed and discussed the evidence of record and opined that the Veteran had chronic lichenoid dermatitis of the right flank and right antecubital area post-service, which was not incurred in or caused by his military service, including his herbicide exposure. The examiner stated that his current skin problems were not related to the in-service "symptomatology." The examiner reflected that the Veteran's in-service dermatology lesions, including warts behind the left ear, a questionable erythema nodosum, and insect bites, were treated accordingly with no residual problems at present. The examiner based his opinion on a review of the evidence of record and the medical literature. Moreover, the July 2013 VA opinion properly addressed whether the Veteran's skin problems, none of which are a presumptive disease for herbicide purposes, are otherwise directly related to presumed herbicide exposure during military service in Vietnam. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other non-presumptive conditions based on exposure to Agent Orange). Overall, this July 2013 VA medical examination and opinion was thorough, supported by an explanation, based on a review of the claims folder, and supported by the Veteran's medical records. There is no contrary medical opinion of record. With regard to lay evidence, the Board acknowledges the Veteran is competent to report purported symptoms of a skin disorder. See 38 C.F.R. § 3.159(a)(2). Based on recent case law, the Veteran, in certain circumstances, can be competent to testify to the fact that skin symptoms to the feet he experienced in service or immediately thereafter are reflective of the same condition he is currently diagnosed with. Davidson, 581 F.3d at 1316. Similarly, in McCartt v. West, 12 Vet. App. 164, 167 (1999), in support of a claim for service connection for a skin disorder as secondary to Agent Orange exposure, that particular Veteran indicated that his skin had manifested boils, blotches, a rash, soreness, and itchiness since 1968. The Court implied that a skin condition may be the type of condition lending itself to lay observation and satisfy the nexus requirement. Id. However, the Veteran's lay assertions in the present case are outweighed by the clinical findings of the July 2013 VA skin examiner, who determined that the Veteran's in-service skin problems did not continue post-service. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 ( 2012). Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for a skin disorder. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Governing Laws and Regulations for Secondary Service Connection In addition, 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). Moreover, secondary service connection may be established, as well, 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. 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) probative 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). Analysis -Service Connection for Sleep Apnea The Veteran has contended that his sleep apnea is caused or aggravated by his service-connected diabetes mellitus and hypertension. See December 2010 NOD; March 2012 VA Form 9; September 2010 Veteran's statement. The Veteran was service-connected for the underlying type II diabetes mellitus and hypertension by way of a recent May 2008 rating decision. Upon review of the evidence of record, the Board concludes that the Veteran is not entitled to secondary service connection for sleep apnea. The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran currently has the claimed disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Here, after a physical examination and a review of the record, the December 2011 VA examiner diagnosed the Veteran with obstructive sleep apnea. An earlier June 2000 private medical record also diagnosed the Veteran with sleep apnea. Thus, the evidence establishes that he currently has sleep apnea. When determining service connection, all theories of entitlement, direct and secondary, must be considered by the Board if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider "all possible" substantive theories of recovery. That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). In this respect, in the present case, the Veteran has not raised the issue of service connection for sleep apnea on a direct basis. He has never alleged that his sleep apnea symptoms first manifested during service or are directly related thereto. Moreover, there is no evidentiary support for service connection for a sleep apnea disorder on a direct basis. In this regard, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a sleep disorder. Post-service, the first lay or medical evidence of symptoms of sleep apnea (described as "snoring") is from 1973, which was approximately 4 years after discharge from service. See December 2011 VA examination; June 2010 statement from spouse. There is also no lay or medical suggestion of a nexus between the Veteran's current sleep apnea and his military service. With regard to secondary service connection, the Board finds there is simply no probative evidence of record that the Veteran's service-connected hypertension or diabetes mellitus caused or aggravated a current sleep apnea disorder. 38 C.F.R. § 3.310(a), (b); Allen, 7 Vet. App. at 448; Tobin, 2 Vet. App. at 39. No medical professional of record has provided an opinion to support the Veteran's general assertions of secondary service connection. In fact, there is strong evidence weighing against a finding of secondary service connection. In particular, the Veteran underwent VA sleep examinations in December 2011 and July 2013 by the same VA examiner. In July 2013, the VA clinician opined that the Veteran's obstructive sleep apnea was "not as likely as not" due to or aggravated by his service-connected hypertension and diabetes mellitus. The VA examiner explained that obstructive sleep apnea increases the incidence of hypertension, but did not state the opposite. The Board notes that secondary service connection is not available for a nonservice-connected disability (sleep apnea) that impacts or aggravates a service-connected disability (here hypertension). Johnston v. Brown, 10 Vet. App. 80, 85-86 (1997). This is known as a "reverse Allen" situation, and secondary service connection cannot be established on this basis. In addition, the July 2013 VA clinician added that type II diabetes mellitus is associated with sleep apnea and snoring. However, the examiner added it is not clear there is an independent relationship between the two conditions, or whether obesity is a common factor with the Veteran. The July 2013 VA examiner's opinion was detailed, thorough, based on a review of the pertinent evidence of record, and supported by adequate reasoning. It provides medical evidence against secondary service connection for a sleep apnea disorder by way of proximate cause or aggravation. The Board finds that this unfavorable medical opinion is entitled to great probative weight against the claim. Significantly, there is no contrary medical opinion of record. With regard to lay evidence of a nexus of sleep apnea to a service-connected disability, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is indeed competent to report purported symptoms and the date of onset of his sleep apnea problems. See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09. However, the Board finds the Veteran's lay statements with regard to the existence of a secondary relationship are less persuasive than the post-service VA medical opinion of record, which provides a strong clinical rationale against secondary service connection based on medical expertise. Accordingly, the preponderance of the evidence is against the Veteran's service connection claim for sleep apnea. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Governing Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on 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 (2013). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). 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 the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - Increased Evaluation for Type II Diabetes Mellitus The Veteran's type II diabetes mellitus has been assigned a 20 percent rating pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913 (diabetes mellitus). This 20 percent rating has remained in effect since August 9, 2007. The Veteran has appealed the May 2008 rating decision that granted service connection for a type II diabetes mellitus. This could result in "staged ratings" based upon the facts found during the period in question. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his diabetes mellitus disability has been more severe than at others. Id. Under Diagnostic Code 7913, a rating of 10 percent is assigned for diabetes mellitus that is managed by a restricted diet only. A rating of 20 percent is assigned for diabetes mellitus requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. The next higher rating of 40 percent is assigned when the disability requires insulin, restricted diet, and regulation of activities. A 60 percent disability rating is warranted when the diabetes mellitus requires 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. A maximum 100 percent rating is warranted if the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring three hospitalizations a year or weekly visits to a diabetic provider, plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. 38 C.F.R. § 4.119. The Court has held that, in order to demonstrate a regulation of activities, "medical evidence" is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities." Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, Diagnostic Code 7913 (defining the term within the criteria for a 100 percent rating)). "Successive" rating criteria, such as Diagnostic Code 7913 for diabetes mellitus, is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, the diagnostic code for diabetes mellitus (Diagnostic Code 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. Upon review of the evidence, as of April 22, 2013, an initial 40 percent rating, but no higher, is warranted for the Veteran's type II diabetes mellitus under Diagnostic Code 7913. Specifically, an April 22, 2013, VA Form 21-0960E-1 (Diabetes Mellitus Disability Benefits Questionnaire) completed by a private physician indicated that the Veteran's diabetes mellitus now requires one injection of insulin a day, an oral hypoglycemic agent, and a regulation of activities. It was also noted that he has to monitor his blood glucose on a regular basis. Previous VA treatment records already established that the Veteran was only on a restricted diet and on an oral hypoglycemic agent. Thus, this April 22, 2013, report is the first probative evidence of record for the necessity for insulin and regulation of activities. Therefore, as of April 22, 2013, the Veteran meets the criteria for a higher initial 40 percent rating for diabetes mellitus. However, as of April 22, 2013, an initial rating beyond 40 percent for the Veteran's type II diabetes is not warranted under Diagnostic Code 7913. That is, as of April 22, 2013, the evidence of record does not reveal episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year; twice a month visits to a diabetic care provider; more than one daily injection of insulin; plus either progressive loss of weight and strength or signs that would be compensable if separately evaluated. See 38 C.F.R. § 4.119, Diagnostic Code 7913. There is no medical or lay evidence of this level of symptomatology. In fact, the April 2013 report completed by the Veteran's private physician specifically indicated that the Veteran did not have any episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization over the past 12 months and that he had only been prescribed one injection of insulin per day. She also noted that the Veteran visited his diabetic care provider less than two times per month. The physician further stated that he did not have progressive, unintentional weight loss or progressive loss of strength attributable to diabetes mellitus. Therefore, the Board concludes that the Veteran is entitled to a 40 percent evaluation as of April 22, 2013, but no higher. Moreover, prior to April 22, 2013, there is no basis for an initial rating in excess of 20 percent for the Veteran's diabetes mellitus under Diagnostic Code 7913. A March 2008 VA examiner noted that the Veteran took an oral hypoglycemic agent, Tolazamide, to treat the disorder and monitored his diet. However, he only saw a diabetic care provider at three to four month intervals and denied any history of ketoacidosis or hypoglycemic reactions. The Veteran also denied both loss of strength and restriction of activities secondary to diabetes mellitus. An August 2010 VA eye examiner confirmed that the Veteran treated his diabetes mellitus by taking on oral medication. A September 2010 VA examiner also documented no history of ketoacidosis or hypoglycemic reactions; a restricted diet; temporary weight loss that he gained back; the use of oral hypoglycemic agents Glipizide and Metformin to treat his diabetes; no restriction of activities; and visits to a diabetic care provider at four to five month intervals. Notably, neither VA examiner mentioned or prescribed insulin use, and the September 2010 VA examiner indicated that there was no restriction of activities. In addition, a July 2012 VA examiner noted that the Veteran was prescribed oral hypoglycemic agents, but no insulin. There was no regulation of activities at that time, and the Veteran had visits to a diabetic care provider at less than two times per month. There were also no episodes of ketoacidosis or hypoglycemic reactions, nor was there any progressive, unintentional weight loss. Moreover, prior to April 22, 2013, VA and private treatment records do not reveal any symptomatology indicative of an initial rating above 20 percent for diabetes mellitus. Prior to April 22, 2013, the Board emphasizes that there is neither medical nor lay evidence of regulation of activities due to his diabetes mellitus, as addressed by the Court in Camacho, supra. In fact, the March 2008 and August 2010 VA examiners indicated that the Veteran exercised two to three times weekly for 30 minutes on a treadmill machine. Thus, the Veteran still participated in strenuous recreational activities. A September 2010 VA examiner also stated that the Veteran's diabetes mellitus did not restrict his ability to work. Such facts provide clear evidence against a higher initial rating. In addition, prior to April 22, 2013, there is no lay allegation that the Veteran was taking insulin. In the March 2011 notice of disagreement and March 2012 VA Form 9, the Veteran stated that physicians had recommended the option of insulin use, but there is no indication he actually began insulin at those times. As such, the Veteran's competent and credible lay statements are not sufficient to warrant an increased rating for diabetes mellitus. Accordingly, the Veteran is not entitled to an initial evaluation in excess of 20 percent for his diabetes mellitus prior to April 22, 2013. Analysis - Increased Evaluation for Hypertension The Veteran's hypertension has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease). This 10 percent rating has remained in effect since August 9, 2007. The Veteran has appealed the May 2008 rating decision that granted service connection for a hypertension disability. This could result in "staged ratings" based upon the facts found during the period in question. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his diabetes mellitus disability has been more severe than at others. Id. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more. A 10 percent rating also is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more. The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104 (2013). There are three notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased initial rating greater than 10 percent under Diagnostic Code 7101 for his service-connected hypertension. The probative lay and medical evidence of evidence of record does not reveal blood pressure readings with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, which are the criteria necessary to demonstrate a 20 percent rating. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Specifically, VA and private treatment records document hypertension with blood pressure readings of 159/85, 151/92, and 149/89 (see March 2008 VA examination); 129/98 (see June 2008 VA treatment record); 142/74 (see August 2008 VA treatment record); 139/82 (see September 2008 VA treatment record); 134/101 and 128/86 (see August 2009 VA treatment record); 114/74 (see January 2010 VA treatment record); 126/92 (see February 2010 VA treatment record); 128/89, 127/84, and 129/75 (see September 2010 VA examination); 146/107 and 141/93 and 144/91 (see April 2010 VA treatment record); 140/92 and 122/87 (see June 2010 VA treatment record); 131/93 (see September 2010 VA treatment record); 137/87 and 133/92 (see December 2010 VA treatment record); 140/80 (see January 2011 VA treatment record); 115/66 (see January 2012 VA treatment record); 140/108 (see September 2011 VA treatment record); 127/96 and 127/94 and 126/93 (see July 2012 VA examination); and 125/74 (see January 2012 Scripps Mercy Hospital record). These readings are not commensurate with a higher 20 percent rating. The Board acknowledges that a May 2007 VA Agent Orange examination revealed one instance of a blood pressure reading of 170/115, which is a reading indicative of a higher 20 percent rating for diastolic pressure above 110. Nonetheless, throughout the entire appeal, the Board finds that, overall, the blood pressure readings reveal diastolic pressure predominantly below 110. See 38 C.F.R. § 4.104, Diagnostic Code 7101. In other words, with the exception of one instance, the blood pressure readings reveal diastolic pressure below 110. Thus, the overall disability picture more closely approximates the criteria for an initial rating of 10 percent for hypertension. 38 C.F.R. § 4.7. Accordingly, the Board concludes that an initial evaluation in excess of 10 percent is not warranted for the Veteran's hypertension disability. 38 C.F.R. § 4.3. It is not necessary to "stage" the Veteran's ratings any further, as his hypertension symptoms has been consistent at the 10 percent level for its respective time period. Fenderson, 12 Vet. App. at 126. Extraschedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration, for either the Veteran's service-connected diabetes mellitus or hypertension disabilities. 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran's diabetes mellitus and hypertension symptomatology is fully addressed by the rating criteria under which both disabilities are rated. Because the rating criteria for both disabilities reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran's diabetes mellitus or hypertension disabilities that would render the schedular criteria inadequate. There are no additional symptoms of his diabetes mellitus or hypertension disabilities that are not addressed by the Rating Schedule. Although both disabilities cause some work impairment (see e.g., April 2013 VA Form 21-0960E (Diabetes Mellitus Disability Benefits Questionnaire), such interference is also contemplated by the schedular rating criteria for diabetes mellitus and hypertension. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate 40 and 10 percent ratings are adequate to compensate the Veteran for loss of working time as the result of his diabetes mellitus and hypertension disabilities. In any event, to the extent it could be argued the rating criteria do not cover all his symptomatology for his diabetes mellitus and hypertension disabilities, the Board also finds no probative evidence these particular disabilities markedly interfere with his ability to work, meaning above and beyond that contemplated by his 40 and 10 percent schedular ratings. As noted above, 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; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran worked for a security company until June of 2010. He was granted a TDIU effective June 2012. However, his service-connected PTSD rated as 70 percent disabling has the most significant impact on his ability to work. See e.g., June 2012 VA psychological examination. The evidence of record fails to demonstrate "marked" interference with employment from the diabetes mellitus and hypertension disabilities on appeal. 38 C.F.R. § 3.321(b)(1). A September 2010 VA examiner assessed that the diabetes mellitus and hypertension disabilities do not restrict the Veteran's ability to work. In addition, VA examiners in July 2012 assessed that the Veteran's diabetes mellitus and hypertension disabilities still permit him to perform light duty work involving sedentary work, lifting up to 10 pounds, and lifting, carrying and pushing for up to 30 minutes with a 5 minute rest. Moreover, the SSA in 2013 determined that the Veteran was not disabled from his "non-severe" diabetes mellitus and hypertension disabilities. Finally, there is no evidence of any other exceptional or unusual circumstances, such as frequent hospitalizations due to the Veteran's service-connected diabetes mellitus and hypertension disabilities, to suggest he is not adequately compensated for his disability by the regular Rating Schedule. 38 C.F.R. § 3.321(b)(1); VAOPGCPREC 6-96. The majority of his post-service evaluation and treatment for his diabetes mellitus and hypertension disabilities has been on an outpatient basis. He has not been frequently hospitalized due to these disabilities. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected diabetes mellitus and hypertension under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Service connection for a skin disorder, to include as due to herbicide (Agent Orange) exposure, is denied. Service connection for sleep apnea, to include as secondary to service-connected type II diabetes mellitus or hypertension, is denied. An initial evaluation in excess of 20 percent for type II diabetes mellitus is denied prior to April 22, 2013. An initial 40 percent evaluation for type II diabetes mellitus is granted as of April 22, 2013, subject to the laws and regulations governing the payment of VA compensation. An initial disability rating in excess of 10 percent for hypertension is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs