Citation Nr: 1336019	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  09-44 694	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity.

2.  Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity.

3.  Entitlement to service connection for bilateral hearing loss.

4.  Entitlement to service connection for lymphadenopathy, claimed as due to exposure to chemical herbicides.

5.  Entitlement to service connection for hypertension, claimed as secondary to service-connected Type II diabetes mellitus.

6.  Entitlement to service connection for a liver disorder, claimed as enlarged fatty liver due to exposure to chemical herbicides or as secondary to Type II diabetes mellitus. 

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse, Mrs. P.S. 


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from April 1969 to April 1971.  His military records reflect that he served as an infantryman in the Republic of Vietnam and was decorated with the Combat Infantryman Badge, the Bronze Star Medal, and the Army Commendation Medal.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2008 and February 2011 rating decisions in which the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), inter alia, denied the Veteran's claims for increased ratings for bilateral peripheral neuropathy of the lower extremities (each lower extremity currently rated 10 percent disabling), and service connection for bilateral hearing loss, lymphadenopathy (claimed as due to exposure to chemical herbicides), hypertension (claimed as secondary to service-connected Type II diabetes mellitus), and a liver disorder (claimed as enlarged fatty liver due to exposure to chemical herbicides or as secondary to Type II diabetes mellitus).

At present, in addition to bilateral peripheral neuropathy of his lower extremities, the Veteran is also service connected for posttraumatic stress disorder (rated 70 percent disabling); neuropathy of his anal musculature (rated 30 percent disabling); peripheral neuropathy of his right upper extremity (rated 30 percent disabling); peripheral neuropathy of his left upper extremity (rated 20 percent disabling); and Type II diabetes mellitus (rated 20 percent disabling).  His combined disability rating under 38 C.F.R. § 4.25 (2013) is presently 90 percent and he is in receipt of an award of a total rating for individual unemployability due to his service-connected disabilities (TDIU).   

In May 2013, the Veteran and his spouse, accompanied by the Veteran's representative, appeared at the RO to present oral testimony and evidence before the undersigned Veterans Law Judge sitting at the RO.  The evidence submitted was accompanied by the appropriate waivers of first review by the agency of original jurisdiction.  A transcript of this hearing has been obtained and associated with the claims file for the Board's review and consideration.

The Veteran has presented written and oral statements indicating that he is also seeking service connection for a chronic skin rash and tinnitus.  As these matters have not been adjudicated, they are referred to the agency of original jurisdiction for appropriate action.

For the reasons discussed in the REMAND portion of this decision, the issue of entitlement to service connection for a liver disorder, claimed as enlarged fatty liver due to exposure to chemical herbicides or as secondary to Type II diabetes mellitus, is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  The Board will notify the Veteran and his representative if any further action is required on their part.


FINDINGS OF FACT

1.  For the period prior to April 12, 2012, peripheral neuropathy of the Veteran's right and left lower extremities was manifested by subjective complaints of mild numbness with bilateral loss of sensation in each foot, with objective evidence of decreased light touch and vibration sensation, which responded to treatment with Gabapentin medication and which produces impairment that equates to not more than mild incomplete paralysis of the right and left external popliteal nerve (common peroneal).

2.  For the period after April 12, 2012, peripheral neuropathy of the Veteran's right  and left lower extremities is manifested by subjective complaints of moderate paresthesias and dysthesias and severe numbness affecting each leg from above the knee down to the feet, burning pain in the soles and all toes of each foot, absent reflexes in each ankle, and decreased sensory perception and absent vibration sensation, which does not respond to treatment with Gabapentin medication and which renders the Veteran unable to stand for more than 30 minutes, walk a distance of more than a mile; these combined symptoms produce impairment that equates to not more than severe incomplete paralysis of the right and left external popliteal nerve (common peroneal).

3.  At no time during pendency of this claim has the Veteran been diagnosed with a hearing loss disability in the right ear for VA compensation purposes.

4.  Left ear hearing loss did not have its onset during active military service.

5.  Lymphadenopathy did not have its onset during active military service.

6.  Hypertension is secondarily related to the Veteran's Type II diabetes mellitus.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation above 10 percent for peripheral neuropathy of the right lower extremity prior to April 12, 2012, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2013). 

2.  The criteria for a 30 percent evaluation, and no higher, for peripheral neuropathy of the right lower extremity from April 12, 2012, have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2013).

3.  The criteria for an evaluation above 10 percent for peripheral neuropathy of the left lower extremity prior to April 12, 2012, have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2013). 

4.  The criteria for a 30 percent evaluation, and no higher, for peripheral neuropathy of the left lower extremity from April 12, 2012, have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8521 (2013).

5.  The Veteran's objectively assessed level of hearing acuity in his right ear does not currently meet, nor has it met at any time during the pendency of the claim, the criteria for hearing loss for purposes of establishing a disability for VA compensation purposes.  38 C.F.R. § 3.385 (2013).

6.  The Veteran's left ear hearing loss was not incurred, nor is it presumed to have been incurred in active duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2013).  

7.  Lymphadenopathy was not incurred in active duty.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 

8.  Hypertension is proximately due to service-connected Type II diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist.

With respect to the claims decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim.  See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).  38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation.

The claim for service connection for bilateral hearing loss was filed in July 2008, and a VCAA notice letter addressing this issue was dispatched to the Veteran in July 2008, prior to the initial adjudication of this claim in the December 2008 rating decision now on appeal.  The claim for an increased evaluation for bilateral peripheral neuropathy of the lower extremities was filed in August 2010, and a VCAA notice letter addressing this issue was dispatched to the Veteran in September 2010, prior to the initial adjudication of this claim in the February 2011 rating decision now on appeal.  The claim for service connection for lymphadenopathy was filed in September 2010, and a VCAA notice letter addressing this issue was dispatched to the Veteran in September 2010, prior to the initial adjudication of this claim in the February 2011 rating decision now on appeal.  These letters addressed the issues on appeal adjudicated herein and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  As fully compliant notice preceded the initial RO adjudication of the Veteran's claims decided herein, there is no timing of notice defect.  
  
VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant).

VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the service connection and increased rating claims adjudicated herein.  

As pertinent to the claims for service connection for bilateral hearing loss and lymphadenopathy, and for increased ratings for bilateral peripheral neuropathy of the lower extremities, the Veteran's service treatment records and all relevant post-service records from VA and private sources have been obtained and associated with the evidence.  Additionally, the Veteran and his spouse have been afforded the opportunity to submit oral testimony in support of the Veteran's claim.  The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information database for any additional pertinent medical records.

The Board notes that the Veteran was not provided with a VA examination addressing the claim for service connection for lymphadenopathy.  However, this deficit does not render the existing record unusable for purposes of adjudicating the claim on the merits.  The Board is mindful of the test prescribed by the United States Court of Appeals for Veterans Claims (Court) in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), regarding whether a medical examination is necessary to adjudicate a claim, and finds that the absence of an examination addressing the lymphadenopathy issue is not prejudicial to the Veteran's claim as he has not met the criteria under McLendon to warrant such an examination and, furthermore, the service and post-service VA and private medical records presently associated with the claims file provide sufficient evidence to decide the claim.  A VA examination is therefore not necessary to adjudicate this particular matter.  

Specifically, the Board finds that the Veteran has not met all four elements set forth in McLendon, which emphasize that a VA examination must be provided when there is: (1) competent evidence of current disability or recurrent symptoms; (2) establishment of an in-service event, injury, or disease; (3) an indication that the current disability may be associated with the in-service event; and (4) insufficient competent medical evidence to decide the claim.  As will be further discussed below, the Board has determined that the competent and credible evidence does not objectively establish an in-service event, injury, or disease relating his current diagnosis of lymphadenopathy to his period of active service.  The second and third elements of the McLendon test have not been met.  Therefore, the absence of a clinical examination addressing the lymphadenopathy  claim does not constitute a breach of VA's duty to assist.    

With regard to the increased rating claims on appeal, as these stem from August 2010, when the Veteran filed his claim for increased ratings for the service-connected disabilities at issue, the relevant time period and evidence that must be addressed in the adjudication of the claim encompasses the period from August 2009 to the present, in order to allow the Board to consider the applicability of a staged rating.  See 38 C.F.R. § 3.400(o)(2) (2013); Hart v. Mansfield, 21 Vet. App. 505 (2007).  In this regard, the Board observes that private and VA clinical records for the period spanning 2009 to 2012, including reports of VA medical examinations of the lower extremity peripheral neuropathy disabilities at issue, dated in September 2010 and April 2012, have been obtained and associated with the claims file, or are otherwise viewable on the VBMS and Virtual VA electronic information databases.  The Board has reviewed the aforementioned examination reports and notes that the Veteran's pertinent clinical history was considered by the VA clinicians who performed them, and that these examiners provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's pertinent clinical history as contained within his claims file.  The examinations are therefore deemed adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Veteran underwent a VA audiological examination in August 2008, in which objective clinical findings regarding the level of hearing acuity in each ear were obtained and a nexus opinion was obtained, based on a review of the Veteran's pertinent clinical history.  Thus, the Board concludes that the August 2008 VA audiological examination report is adequate for adjudication purposes.  Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Veteran was provided with the opportunity to present oral testimony in support of his claims before the undersigned Veterans Law Judge in a May 2013 hearing.  At the time of the hearing, he was accompanied by his representative and had the benefit of his advice and counsel.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

At the May 2013 Board hearing, the presiding Veterans Law Judge's questions and the oral testimony of the Veteran and his witness focused on the elements necessary to substantiate, inter alia, the Veteran's claims of entitlement to service connection for bilateral hearing loss and lymphadenopathy and increased ratings for his bilateral radiculopathy of his lower extremities.  See transcript of May 22, 2013 Board hearing.  Thus, the Board finds that the Veterans Law Judge presiding over the May 2013 hearing has substantially fulfilled her obligations as required under 38 C.F.R. § 3.103(c)(2).  Bryant, supra.

Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required.  The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board will therefore proceed with the adjudication of this appeal.

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Analysis

(A.)  Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity and in excess of 10 percent for peripheral neuropathy of the left lower extremity.

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 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 (2013).  

In determining the severity of a disability, the Board is required to consider 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 the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2013).  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2013).  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).  Based on the August 2010 date of VA's receipt of the Veteran's application to reopen his claim for a rating increase for bilateral lower extremity neuropathy, the relevant temporal focus for the increased rating claim is from August 2009.  See 38 C.F.R. § 3.400 (2013).

The Veteran is service connected for Type II diabetes mellitus and is in receipt of separate compensable ratings for peripheral neuropathy of his lower extremities as a secondary complication of diabetes.  Entitlement to VA compensation for peripheral neuropathy of his lower extremities, each limb rated 10 percent disabling, was in effect since January 2009, by rating decision dated in May 2009.  Notice of this award and his appellate rights were furnished to him via correspondence dated in May 2009.  He did not timely appeal the initial evaluations assigned and the May 2009 rating decision became final one year later in May 2010.  See 38 C.F.R. § 20.302(a) (2012).  In August 2010, VA received his application to reopen his claim for a rating increase.  The Board notes at this juncture that the Veteran has not submitted evidence prior to May 2010 indicating that his bilateral peripheral neuropathy of his lower extremities has worsened, such that a pending claim could be construed that would vitiate the finality of the May 2009 rating decision.  See 38 C.F.R. §§ 3.156(b), 3.160(c) (2013); Bond v. Shinseki, 659 F.3d 1362 (2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010).     

Each lower extremity is rated for impairment due to paralysis of the external popliteal nerve (common peroneal) under the criteria contained in 38 C.F.R. § 4.124a, Diagnostic Code 8521 (2013), which provides for the following:

Complete paralysis of the external popliteal nerve (common peroneal); foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost; adduction weakened; anesthesia covers entire dorsum of foot and toes, rate as 40 percent disabling.

Severe incomplete paralysis of the external popliteal nerve (common peroneal), rate as 30 percent disabling.

Moderate incomplete paralysis of the external popliteal nerve (common peroneal), rate as 20 percent disabling. 

Mild incomplete paralysis of the external popliteal nerve (common peroneal), rate as 10 percent disabling.

38 C.F.R. § 4.124a, Diagnostic Code 8521 (2013).

Pertinent evidence dated prior to April 12, 2012, includes VA outpatient treatment records and the report of a September 2010 VA neurological examination, which shows in pertinent part that the Veteran's peripheral neuropathy of each lower extremity is manifested by subjective complaints of numbness and loss of sensation in each foot, with additional sense of diminished sensation in each leg from above the knee on down to the foot.  The Veteran was prescribed Gabapentin medication for his neuropathy, which appeared to produce good results in controlling his symptoms.  No dyesthesias, muscle atrophy, or loss of muscle tone in either lower extremity was detected.  He was able to fully dorsiflex both ankles, plantar flex both ankles, and extend both great toes.  The September 2010 examiner opined that there were no disabling effects imposed by the Veteran's bilateral peripheral neuropathy of his lower extremities on his occupational capacity or his usual daily activities.  

In consideration of the foregoing evidence, the Board concludes that the overall disability picture presented equates to not more than mild incomplete paralysis of the right and left external popliteal nerve (common peroneal), applying the criteria of Diagnostic Code 8521 for a 10 percent rating.  While there is diminished sensation in each lower extremity and foot, the Veteran remained capable of ambulation and no muscle atrophy was noted on examination.  No significant impact on his occupational capacity due to the neuropathic complications affecting his lower extremities was demonstrated.  As such, the constellation of disabling symptomatology associated with peripheral neuropathy of each affected limb does not more closely approximate the criteria for a 20 percent evaluation under Diagnostic Code 8521 for moderate incomplete paralysis of the right and left external popliteal nerve (common peroneal).  That part of the claim for a rating increase above 10 percent for peripheral neuropathy of the right lower extremity prior to April 12, 2012, and peripheral neuropathy of the left lower extremity prior to April 12, 2012, is therefore denied.

The clinical evidence includes a VA medical examination conducted on April 12, 2012, which indicates that the Veteran's bilateral peripheral neuropathy had undergone a significant increase in its severity during the pendency of this claim.  The examination demonstrates that as of April 12, 2012, peripheral neuropathy of the Veteran's right and left lower extremities is manifested by subjective complaints of moderate paresthesias and dysthesias and severe numbness affecting each leg from above the knee down to the feet, burning pain in the soles and all toes of each foot, absent reflexes in each ankle, and decreased sensory perception and absent vibration sensation, which did not respond to treatment with Gabapentin medication and which rendered the Veteran unable to stand for more than 30 minutes, walk a distance of more than a mile.  Inexplicably, despite the evident severity of the symptoms associated with his bilateral peripheral neuropathy of the lower extremities that was objectively demonstrated on testing in April 2012, the examining clinician characterized the disability as representing only mild incomplete paralysis, despite opining in the same report that the combined effects of the peripheral neuropathy of the Veteran's lower extremities with his service-connected diabetes and bilateral peripheral neuropathy of his upper extremities rendered him unable to obtain and retain gainful physical or sedentary employment.

In consideration of the foregoing evidence, the Board concludes that the overall disability picture presented equates to not more than severe incomplete paralysis of the right and left external popliteal nerve (common peroneal), applying the criteria of Diagnostic Code 8521, notwithstanding the incongruous characterization of the April 2012 examining clinician, who assessed the impairment as being representative of only mild incomplete paralysis. As the constellation of disabling symptomatology associated with peripheral neuropathy of each lower limb more closely approximates the criteria for a 30 percent evaluation under Diagnostic Code 8521 for severe incomplete paralysis of the right and left external popliteal nerve (common peroneal) as of April 12, 2012, an increased evaluation to 30 percent will be granted effective on this date. 38 C.F.R. § 4.7 (2013). Any doubt in this regard is to be resolved in favor of the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

However, as the objective clinical evidence does not demonstrate that the Veteran's bilateral peripheral neuropathy of either lower extremity is manifested by complete paralysis of the external popliteal nerve (common peroneal), with foot drop and slight droop of first phalanges of all toes, an inability to dorsiflex the foot, loss of the ability to extend (dorsiflex) the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction, and anesthesia covering the entire dorsum of foot and toes, assignment of the next higher evaluation of 40 percent is not warranted. 

The Board has considered the Veteran's oral testimony at his May 2013 hearing, in which he reported that he needed to wear supportive braces around each knee and had to keep his lower extremities moving at regular brief intervals to reduce his painful symptoms, thus requiring him to take frequent breaks when traveling by automobile over long distances.  While acknowledging these disabling symptoms, the Board finds that they do not provide a basis for assignment of an evaluation greater than 30 percent for peripheral neuropathy of either lower extremity.

A rating in excess of the assigned schedular evaluations for the Veteran's service-connected disabilities addressed herein on the merits may be granted when it is demonstrated that the particular disability 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) (2013).  To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1) (2013).  The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  The Court further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 277 (1995).

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.  If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If so, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The Board finds that there is no evidence that the service-connected peripheral neuropathy of the Veteran's lower extremities have presented such an unusual or exceptional disability picture at any time between August 2009 to the present, so as to require consideration of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b) (2013).  Specifically, the evidence of record does not indicate that the Veteran is frequently hospitalized for this service-connected neurological disability.  Furthermore, although the Veteran is unable to obtain and retain gainful employment, this is due to the combined effects of not only his service-connected lower extremity peripheral neuropathy but also his service-connected diabetes and upper extremity peripheral neuropathy, such that the Board cannot concede that the peripheral neuropathy of the lower extremities, by itself, produces marked interference with employment.  The criteria of the applicable rating schedule are therefore deemed to adequately contemplate the Veteran's present level of impairment due to the neurological disability at issue.  As such, the Board cannot concede that the peripheral neuropathy of the Veteran's lower extremities causes marked interference with his employment capacity.  A higher rating is available for the Veteran's disability, but for the reasons described in the above decision, the higher rating was denied in this case.  The clinical evidence and medical opinion fails to show that the disability picture created by bilateral peripheral neuropathy of his lower extremities is of an exceptional or unusual nature.  Having reviewed the record with these mandates in mind, the Board finds that the schedular ratings presently assigned adequately reflects the state of its impairment for the periods to which they are applied, and that there is no evidentiary basis for referral of the case for extraschedular consideration with regard to this issue.

The Board notes that the Veteran is presently service connected for multiple disabilities involving his psychiatric, nervous, and endocrine systems, which render him individually unemployable and for which he has been awarded a TDIU.  Therefore, any further discussion of entitlement to a TDIU is rendered moot.    
 
(B.)  Entitlement to service connection for bilateral hearing loss.

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2013).

In order to establish a right to compensation for a disability, a veteran must show:  "(1) the existence of a present disability; (2) the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).    

Certain chronic diseases (e.g., organic diseases of the nervous system such as sensorineural hearing loss) are presumed to have been incurred in service if manifest to a compensable degree within one year of service discharge if the claimant had 90 days or more of continuous active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

With chronic disability or disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2013)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  This rule does not mean that any manifestation of relevant symptoms in service will permit service connection for a chronic disability generally represented by such symptoms, first shown as a clear-cut clinical entity, at some later date.  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, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  38 C.F.R. § 3.303(b) (2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).  

The Veteran testified at his May 2013 hearing that during service he was exposed to acoustic trauma while serving in combat in Vietnam and operating small arms.  The Board notes that the Veteran's above statements are credible as they are corroborated by his personnel records, reflecting both his military specialty as an infantryman and his involvement in direct armed combat against enemy forces.  

The Veteran's testimony is that he experienced a perceived decrease in his hearing acuity during service, which thereafter persisted and continued to the present day.  His essential assertion is that this hearing loss was the result of his exposure to acoustic trauma from combat.  He also asserted that his unilateral hearing loss in his left ear would be consistent with the fact that he fired weapons in combat from his left shoulder.  The Veteran is both credible and competent to report experiencing decreased hearing during service and continuity of hearing loss since service (see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006)).  However, before the Board can proceed further with the Veteran's hearing loss claim, it must first determine whether or not his diminished hearing acuity has met the basic criteria prescribed by VA regulations to be considered a disability for VA compensation purposes.

Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater or where the auditory thresholds for at least three of these frequencies are 26 decibels or greater or when speech recognition scores are less than 94 percent.  38 C.F.R. § 3.385.  The objective audiometric data obtained during active duty and on VA examination in August 2008 fail to establish that the Veteran has met the aforementioned criteria for his right ear.  

The Veteran's service medical records show that his ears and tympanic membranes were normal on induction examination in June 1968.  On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
N/A
0
LEFT
10
0 
0
N/A
0

On separation examination in March 1971, the Veteran's ears and tympanic membranes were normal.  On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
0
0
LEFT
0
0 
0
0
0

The Board notes at this juncture that the Veteran was formally separated from active duty one month afterwards, in April 1971.  The Veteran asserts that no audiological assessment of his hearing acuity was conducted when he was discharged in April 1971 and thus contends that any subsequent audiological opinion that his hearing was normal on separation is based on a false premise as no examination was performed on the actual date of his separation.  The Board finds that the Veteran was, in fact, duly provided with an audiogram in conjunction with his separation examination in March 1971, and that his argument in this regard is without merit.  The March 1971 examination is sufficiently proximate in time to the date of his actual separation that its clinical findings would be valid for purposes of demonstrating the state of his hearing during his discharge in April 1971.  

Post-service, on the authorized VA audiological evaluation in August 2008, the Veteran's pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
15
10
15
15
25
LEFT
15
10
25
40
30

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.  Based on these objective audiometric findings, the examining VA audiologist diagnosed the Veteran with normal hearing in his right ear and mild high-frequency sensorineural hearing loss in his left ear.  While acknowledging and conceding the Veteran's exposure to acoustic trauma associated with armed combat during active service, the audiologist opined that the Veteran's left ear hearing loss was not caused by, nor was it the result of military noise exposure because the clinical evidence demonstrated that he had normal hearing, bilaterally, at the time of his service separation examination, thus indicating that he underwent no damage to his hearing notwithstanding his exposure to combat-related acoustic trauma consistent with his military duties as an infantryman.   

In view of the foregoing evidentiary discussion, the Board factually concludes that at no time during the current appeal period has the Veteran met the requisite minimum degree of impaired hearing in his right ear to make him eligible to claim VA compensation for disability due to unilateral hearing loss of the right ear only, pursuant to the criteria defining a hearing loss disability contained in 38 C.F.R. § 3.385.  As such, his claim for VA compensation for right ear hearing loss must fail for the absence of legal merit or lack of entitlement under the law.  The relevant facts are not in dispute.  It is the law, not the evidence, which is dispositive of this hearing loss claim.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  His appeal in this regard must therefore be denied.

As for the Veteran's claim for service connection for unilateral hearing loss of his left ear, although his left ear meets the criteria for a disability for VA compensation purposes under 38 C.F.R. § 3.385, the objective opinion of the examining clinician in August 2008 has determined that this impaired hearing in his left ear was not related to active service as no hearing impairment of either ear was presented during objective audiological assessment on separation examination in March 1971.  As the weight of the evidence is against his claim, the benefit-of-the-doubt doctrine does not apply.  Service connection for a chronic hearing loss disability of either rear must therefore be denied.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013);  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

To the extent that the Veteran attempts to relate his hearing loss to his period of active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician.  The records show that his post-service career was in sales and do not reflect any formal medical training.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the actual time of onset of clinical (as opposed to merely self-perceived) hearing loss falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a probative medical opinion linking these diseases to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose internal diseases of the nervous system, such as sensorineural hearing loss).

(C.)  Entitlement to service connection for lymphadenopathy, claimed as due to exposure to chemical herbicides.

Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein.  This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2013).  

The Veteran's service medical records show normal skin and lymphatics during induction examination in June 1968.  In 1970, he was treated for a wasp sting and skin abscess of his right forearm, and furunculosis of his face, lower extremities, and upper extremities due to a skin infection.  The records indicate that these conditions fully resolved as his skin and lymphatics were clinically normal on separation examination in March 1971. 

Post-service medical records reflect that the Veteran was first treated for lymphadenopathy in 2007, over 35 years after separating from active duty, when a swollen lymph node in his right inguinal region was surgically excised.  Biopsy of the excised lymph node was negative for cancer.  Subsequent treatment for recurrent swollen lymph nodes in his left flank and right mandible, including surgical excision of some of these nodes, is demonstrated in the medical record for the period from 2007 - 2012.  Biopsies of all affected lymph tissue revealed no cancer.

In his hearing testimony of May 2013, the Veteran stated that he believed that his lymphadenopathy was secondary to his skin infection (claimed a cellulitis) and furunculosis in service, or was otherwise directly related to his exposure to chemical herbicides in Vietnam.  He related an account of how he was inadvertently doused with chemical herbicide while handling a portable tank of defoliant while preparing a base in Vietnam.

While the Board concedes that the Veteran was exposed to chemical herbicides in service, lymphadenopathy is not a disease specifically recognized in the applicable regulations as being presumptively due to Agent Orange exposure.  38 C.F.R. § 3.309(e) (2013).  However, service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

The Board has reviewed the clinical evidence thoroughly, but it finds nothing that objectively links the Veteran's lymphadenopathy to his period of military service.  The lymphadenopathy itself was not manifest until over 35 years had elapsed since the Veteran's separation from active duty.  A lengthy period without treatment of the claimed disability is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim.  See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).  In the absence of any objective medical evidence or opinion associating the Veteran's lymphadenopathy with his period of active duty, the Board finds no basis to allow this claim.  Service connection for lymphadenopathy must therefore be denied.

To the extent that the Veteran attempts to relate his lymphadenopathy to his period of active service based on his own personal knowledge of medicine and his familiarity with his individual medical history, the Board first notes that he is not shown in the record to be a trained medical clinician.  The records show that his post-service career was in sales and do not reflect any formal medical training.  Although lay persons may be competent to provide opinions as to some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), as the specific question in this case regarding the actual etiology of lymphadenopathy falls outside the realm of common knowledge of a lay person, he lacks the competence to provide a probative medical opinion linking these diseases to service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to diagnose internal diseases of the lymphatic system, such as lymphadenopathy).

In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for lymphadenopathy as the preponderance of the evidence is against allowing his claim.  Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

(D.)  Entitlement to service connection for hypertension, claimed as secondary to service-connected Type II diabetes mellitus.

The Veteran's claim of entitlement to service connection for hypertension is being granted in full.  Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance of Act of 2000 (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) with regard to the claim is rendered moot by this fully favorable decision.  

Service connection basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service.  This may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions.  38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).  Service connection may also be granted for disability which is proximately due to, or the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a), (b) (2013).

To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

As relevant, the Veteran's service medical records show normal cardiovascular findings and no indication of sustained elevated systolic and/or diastolic blood pressure readings throughout his entire period of active duty.  Post-service medical records do not demonstrate hypertensive vascular disease manifest to a compensable degree within one year following his separation from active duty in April 1971.  Thusly, the evidence does not support an allowance of service connection for hypertension on a direct or presumptive basis.  38 C.F.R. §§ 3.303, 3.307, 3.309 (2013).

The Veteran is presently service connected for Type II diabetes mellitus, which is rated 20 percent disabling and is presumed to have been due to his exposure to chemical herbicides during his tour of combat duty in the Republic of Vietnam.  Post-service medical records first note that the Veteran had hypertension in 2004, proximate in time to his first diagnosis of Type II diabetes mellitus.  

The Veteran's basic contention is that his hypertension is secondarily related to his service-connected diabetes.  The clinical evidence associated with this claim includes three VA medical examinations conducted in August 2008, May 2009, and April 2011, whose reports each include a medical opinion specifically addressing this question.  

The August 2008 VA opinion was presented by a VA nurse practitioner and co-signed by a VA physician, Dr. A.W.B., who reviewed the pertinent record and determined that it was "less likely as not. . .  that the [Veteran's] hypertension was/is caused by or a result of [service-connected] Diabetes Mellitus," based on his existing risk factors.  

However, the subsequent May 2009 VA opinion, which was presented by a VA physician's assistant and co-signed by the same VA physician, Dr. A.W.B., who co-signed the previous opinion, determined that the Veteran's hypertension was secondarily associated with his diabetes mellitus and was a complication of this service-connected disease, the rationale being that time of onset of hypertension was approximately concurrent with the onset of Type II diabetes mellitus.

The Board has considered the above opinions.  The August 2008 opinion states that there is no etiological relationship between the Veteran's hypertension and his service-connected diabetes, whereas the subsequent May 2009 opinion states that the hypertension is a secondary complication of diabetes.  Although these opinions appear to be in conflict, the Board finds that because the same co-signing VA physician was involved in both opinions, his more recent opinion of May 2009, which draws a positive link between the Veteran's hypertension and his service-connected diabetes mellitus, represents, in essence, a change of mind on part of the co-signing VA physician.  Therefore, Dr. A.W.B.'s negative opinion of August 2008 will be disregarded as it is superceded by his more favorable subsequent opinion of May 2009.

Having made the above factual determination, the Board now must consider the probative weight of the May 2009 nexus opinion with a subsequent VA clinician's opinion dated in April 2011, in which a VA physician's assistant had reviewed the pertinent medical history and determined that the Veteran's hypertension is not a complication of, nor was it permanently worsened by his service-connected diabetes because both diseases were diagnosed at the same time.  (The April 2011 did not expressly discuss and refute the prior May 2009 opinion.) 

The Board has considered the May 2009 and April 2011 opinions.  Both present directly opposing conclusions regarding the relationship between the Veteran's hypertension and his service-connected diabetes mellitus based on virtually the identical rationale.  This by itself places the objective medical evidence that is both in favor of and against the Veteran's claim in a state of relative equipoise.  However, as the May 2009 opinion was endorsed by a medical doctor, his credentials are accorded greater probative weight than the April 2011 opinion of a physician's assistant.  (The Board in no way intends to disparage the medical competence and professional credibility of the physician's assistant involved, but it is obligated to weigh the evidence.  Thusly, all things being equal, the Board finds that a medical doctor's opinion has more probative value than an opinion presented on the same matter by a physician's assistant.)  Therefore, resolving any doubt that may exist in the Veteran's favor, the claim of entitlement to VA compensation for hypertension will be granted.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  




(CONTINUED ON NEXT PAGE)
ORDER

An increased evaluation above 10 percent for peripheral neuropathy of the right lower extremity prior to April 12, 2012 is denied.

A 30 percent evaluation, and no higher, for peripheral neuropathy of the right lower extremity from April 12, 2012 is granted.

An increased evaluation above 10 percent for peripheral neuropathy of the left lower extremity prior to April 12, 2012 is denied.

A 30 percent evaluation, and no higher, for peripheral neuropathy of the left lower extremity from April 12, 2012 is granted.

Service connection for bilateral hearing loss is denied.

Service connection for lymphadenopathy is denied.

Service connection for hypertension is granted.


REMAND

The Veteran claims entitlement to service connection for a liver disorder, which he contends is an enlarged fatty liver that is the result of his exposure to chemical herbicides during service, or is secondary to his service-connected Type II diabetes mellitus.  No chronic liver disease or hepatobiliary abnormality is indicated in his service medical records.  The current medical evidence includes private and VA medical records showing that liver function tests and other objective studies performed on the Veteran demonstrate the presence of an enlarged fatty liver, with the potential for disabling complications that may eventually arise from this condition.  The evidence does not address, however, the etiology of this condition, although the evidence does indicate that it is not due to excessive alcohol use.  

The Veteran has made specific references to medical treatise evidence indicating a medical relationship or, at the very least, a correlation between an enlarged fatty liver and Type II diabetes mellitus.  Although such treatise evidence is non-specific to the present claim and therefore the Board is not required to accord it significant probative weight (see Mattern v. West, 12 Vet. App. 222, 228 (1999)), the Veteran's contention has nevertheless raised a valid theory of service connection that must be given due consideration.  [See Robinson v. Mansfield, 21 Vet. App. 545, 550-552 (2008): As a component of VA's duty to assist a claimant, VA must discuss all theories of entitlement raised in the record, either by the claimant or in the medical evidence.]  However, the Board is presently unable to do so because the current state of the medical record does not include a nexus opinion that addresses the likelihood that the Veteran's enlarged fatty liver is proximately due to his service-connected Type II diabetes mellitus.  Therefore, a remand for further evidentiary development is warranted, to include providing the Veteran with a VA medical examination by an appropriate clinician so that a nexus opinion addressing the aforementioned question may be obtained.    
     
Accordingly, in view of the foregoing discussion, the case is REMANDED to the RO/AMC for the following action:

1.  The Veteran should be scheduled for a medical examination by the appropriate clinician that specifically addresses his enlarged fatty liver and its relationship with his service-connected Type II diabetes mellitus.  All tests and studies deemed appropriate by the examiner should be performed.  The Veteran's claims file must be made available to the examining clinician, who must state in his/her report that the Veteran's claims file was reviewed in conjunction with this examination.  

Thereafter, the clinician must provide an opinion, presented in the context of the medical record, with complete supportive rationales, addressing the following question:

Is at least as likely as not (a 50 percent probability or greater) that the Veteran's diagnosed enlarged fatty liver is caused by, or aggravated by, his service-connected Type II diabetes mellitus?

The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.  

If aggravation is present, the examiner should indicate, to the extent possible, the approximate level of severity of the disorder (i.e., a baseline) before the onset of the aggravation.

A rationale for the requested opinion shall be provided.  If the clinician cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so.  In so doing, the clinician shall explain whether the inability to provide an opinion is the result of a need for additional information or that he /she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

The Veteran is hereby advised that failure to report for a scheduled VA examination, without good cause, may have adverse consequences for his claim.  

2.  After the above opinion has been obtained, the RO/AMC shall readjudicate the Veteran's claim of entitlement to service connection for a liver disorder, claimed as enlarged fatty liver due to exposure to chemical herbicides or as secondary to service-connected Type II diabetes mellitus, in consideration of the additional evidence obtained.  The service connection theories that the RO/AMC must address in its readjudication must include service connection on a direct basis and as secondary to the aforementioned service-connected disability.  

If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case and provided with sufficient opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim.  The Board intimates no opinion as to the outcome in this case by the action taken herein.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).  



______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs