Citation Nr: 1416053 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 09-49 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for Dupuytren's contracture of the right hand, to include as secondary to diabetes mellitus, type II. 2. Entitlement to service connection for Dupuytren's contracture of the left hand, to include as secondary to diabetes mellitus, type II. 3. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. 4. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The appellant had active service from June 1960 to June 1969. He also had service in the National Guard from June 1979 to February 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2009 and October 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The March 2009 rating decision denied the appellant's claims for entitlement to service connection for Dupuytren's contracture of the right and left hands and entitlement to TDIU. The October 2009 rating decision denied the appellant's claim for entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II. When the case was previously before the Board in June 2012, the case was remanded for additional development. As noted in the June 2012 remand, the Veteran's claim for an increased evaluation for service-connected diabetes mellitus, type II, with supporting evidence, was received in August 2009, which is within one year of a January 2009 rating decision that granted an earlier effective date for service connection for diabetes mellitus, type II and continued an evaluation of 20 percent. As the appellant's representative requested an increased rating for diabetes mellitus, but did not express disagreement with the January 2009 rating decision, and the additional evidence referenced additional manifestations incurred since the January 2009 rating decision, the Board has not construed the claim as a notice of disagreement with the January 2009 rating decision, or that the supporting evidence was new and material as to the prior claim so as to warrant reconsideration of the January 2009 rating decision pursuant to the provisions of 38 C.F.R. §3.156(b). The Board also notes that the appellant filed a timely substantive appeal on the issue of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, in April 2010. Thus, the issue is before the Board. The issues of entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record establishes that it is at least as likely as not that the Veteran's Dupuytren's contracture of the right hand is aggravated by his service-connected diabetes mellitus, type II. 2. The most probative evidence of record establishes that it is at least as likely as not that the Veteran's Dupuytren's contracture of the left hand is aggravated by his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. Dupuytren's contracture of the right hand is aggravated by service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002& Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310(b) (2013). 2. Dupuytren's contracture of the left hand is aggravated by service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002& Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.310(b) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the decision below, the Board has granted the Veteran's claims for service connection for Dupuytren's contracture of the right hand and Dupuytren's contracture of the left hand. Therefore, regardless of whether the VCAA duties to notify and assist have been met in this case with regard to these claims, no harm or prejudice to the appellant has resulted. As such, the Board concludes that the current laws and regulations have been complied with, and a defect, if any, in providing notice and assistance to the Veteran is at worst harmless error in that it does not adversely affect the essential fairness of the Board's adjudication of the claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board observes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (2013). This requirement was not contained in prior versions of the regulation. Cf. 38 C.F.R. § 3.310 (2006). 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 would also include 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 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 rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering all of the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for Dupuytren's contracture of the right hand and Dupuytren's contracture of the left hand. The Board notes that when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). However, as will be discussed below, the Board is granting the Veteran's claim under the theory of secondary service connection. As the Veteran has not asserted, and the record does not show, that the disabilities at issue are due to service, the laws and regulations concerning direct service connection will not be discussed. The Veteran did not file his claim for Dupuytren's contracture of the hands prior to October 2006. See 38 C.F.R. § 3.102 (2013). As such, the Board will apply the current version of the regulation. A November 2008 VA examination report notes that although there is an association of increased occurrence of Dupuytren's contracture in diabetes patients, there is no evidence of a cause and effect relationship. The examination report goes on to state that the best evidence so far indicates that Dupuytren's contracture is a T-cell autoimmune disorder. The examiner therefore opined that the Veteran's Dupuytren's contracture cannot be attributed to diabetes without resorting to mere speculation. The record contains an October 2009 private treatment record from Dr. Rizzo. The record reflects Dr. Rizzo's opinion that a lot of the Veteran's difficulties with his bilateral Dupuytren's contracture are contributed to by his diabetes. A July 2012 VA examination report notes that the Veteran's Dupuytren's diagnosis preceded his diagnosis of diabetes, and therefore, it is not a result of his diabetes. The examiner also opined that a baseline level of severity of the Dupuytren's contracture can be determined based upon medical evidence available prior to aggravation of the disability by the service-connected condition. Specifically, the examiner opined that symptoms in the right hand seemed to be improved from successful 1999 surgery, but following the diagnosis of diabetes, the right hand symptoms returned and symptoms also developed in the left hand. The examiner further opined that the current severity is greater than the baseline. The examiner opined that the Veteran's Dupuytren's contracture of the hands is at least as likely as not aggravated beyond its natural progression by the service-connected diabetes mellitus. The examiner noted that medical literature indicates that recurrence rates of Dupuytren's contracture have been related to the coexistence of diabetes mellitus. There is no contrary opinion of record stating that the Veteran's Dupuytren's contracture of the hands is not aggravated by his service-connected diabetes mellitus. Thus, the Board finds that the probative evidence of record shows that the Veteran's Dupuytren's contracture of the left and right hands is aggravated by his diabetes mellitus and service connection is granted for Dupuytren's contracture of the right hand and Dupuytren's contracture of the left hand. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for Dupuytren's contracture of the right hand is granted. Entitlement to service connection for Dupuytren's contracture of the left hand is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the June 2012 remand, the Board instructed the AOJ to obtain the Veteran's VA treatment records dated from May 2010 to the present, including the diabetic eye examination referenced in the May 2010 VA treatment record. It was then specifically instructed that if the records are not available, the claims file must indicate this fact. On remand, additional VA treatment records were obtained and associated with the Veteran's Virtual VA claims file. A review of those records indicates that a May 21, 2010 VA treatment record indicates that the Veteran was due for his annual diabetic exam and that a fee basis request for the diabetic eye exam was placed. A May 26, 2010 VA treatment record reflects that the fee basis results had been scanned. Unfortunately, the actual fee basis examination report is not in the paper claims file, the Virtual VA claims file, or the VBMS claims file. There is also no negative response of record. Moreover, the supplemental statement of the case does not reference this fee basis examination report or the AOJ's action taken to obtain it. Therefore, the AOJ did not accomplish the objectives set forth in the June 2012 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Because the fee basis examination may affect the Veteran's claims of entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, and entitlement to TDIU, and the RO must be afforded the opportunity to consider the TDIU claim with consideration of the grant of service connection for Dupuytren's contracture of the right and left hands herein, the claims must be remanded. Accordingly, the case is REMANDED for the following action: 1. Undertake all appropriate development efforts to obtain a copy of the fee-basis examination report referred to in the May 21, 2010 and May 26, 2010 VA treatment records. Any negative response should be in writing and associated with the claims file. 2. Once the above actions have been completed, the AOJ must re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs