Citation Nr: 1600065 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 09-10 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as a result of in-service exposure to herbicides. 2. Entitlement to service connection for a skin disorder, to include as a result of in-service exposure to herbicides. 3. Entitlement to service connection for a cardiovascular disorder, claimed as congestive heart failure and ischemic heart disease, to include as secondary to a service-connected disability. 4. Entitlement to service connection for an eye disability, to include retinopathy, ptosis, blepharochalasis, and visual field loss including as secondary to a service-connected disability. 5. Entitlement to service connection for a circulatory disorder of the lower extremities, to include as secondary to a service-connected disability. 6. Entitlement to service connection for neuropathy of the lower extremities, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The claim for service connection for an eye disability was previously developed as a claim of service connection for retinopathy. However, the United States Court of Appeals for Veteran Claims (Court) has held (in the context of a claim for service connection for a psychiatric disorder) that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of Clemons, this issue has been broadened and recharacterized as is reflected on the title page. In May 2013, the Board remanded the issues on appeal for further development. For the reasons set for below, the issues of entitlement to service connection for a skin disorder, a cardiovascular disorder, an eye disability other than right eye ptosis, and a circulatory disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal was processed using the Veterans Benefits Management System (VBMS). Records in the Virtual VA paperless claims processing system also have been reviewed and considered. FINDINGS OF FACT 1. The evidence is at least in relative equipoise as to whether diabetes mellitus, type II, is related to the Veteran's service. 2. The evidence is at least in relative equipoise as to whether the service-connected diabetes mellitus, type II, caused neuropathy of the Veteran's lower extremities. 3. The evidence is at least in relative equipoise as to whether the service-connected diabetes mellitus, type II, caused right eye ptosis. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). 2. Neuropathy of the lower extremities was caused by the service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). 3. Right eye ptosis was caused by the service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In light of the favorable determination to grant entitlement to service connection for diabetes mellitus, right eye ptosis, and neuropathy of the lower extremities, the only issues resolved herein, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide these issues on appeal. See 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). Diabetes Mellitus Considering the claim for service connection for diabetes mellitus, in light of the record and the governing legal authority, the Board finds that the evidence is at least in equipoise on the question of a nexus. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). First, the Veteran has diabetes mellitus. See July 2013 VA examination. Second, his personnel records show that during service in the U.S. Army he was a crewman and served in Korea from December 1972 to December 1973. Third, although service connection for diabetes mellitus may not be granted on a presumptive basis due to Agent Orange exposure pursuant to 38 C.F.R. §§ 3.307, 3.309(e) as the Veteran neither served in Vietnam during the Vietnam era nor near the Korean DMZ from April 1968 to August 1971, he is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Similarly, the Veteran consistently has contended that he was exposed to Agent Orange during service in Korea as he serviced, painted, and rode on jeeps that came from Vietnam without protective gear. See September 2012 hearing transcript and Veteran's March 2009 statement. The circumstances of his service are consistent with these contentions. Further, in September 2012 he specifically testified that a VA doctor, Dr. S., told him that there was a relationship between his diabetes and his Agent Orange exposure. The Veteran's testimony is credible, and he is competent to report observable symptoms and a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson competent to report a contemporaneous medical diagnosis); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). His testimony is consistent with VA medical records dated in July 2009 whereby Dr. S. listed his diabetes mellitus, type II and stated that he had Agent Orange exposure from sanding jeeps that came from Vietnam. Lastly, the Board notes that, in an unfavorable July 2013 VA opinion, an examiner opined that it was less likely than not that diabetes mellitus, type II, was incurred in or caused by service as it was diagnosed in 2005, there was no medical evidence that the Veteran's diabetes was related to his service, and the Veteran's excessive weight was a risk factor in the development of diabetes. However, this opinion is inadequate as the examiner did not address the Veteran's exposure to Agent Orange by servicing vehicles in 1972 and 1973 that came to Korea from Vietnam. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This opinion is of minimum probative value. Considering the totality of the evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence is at least equipoise on the question of a nexus between service and diabetes mellitus. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Neuropathy of the Lower Extremities and Right Eye Ptosis As the Board is granting service connection for neuropathy and right eye ptosis on a secondary basis, a discussion of service connection on a direct basis is not warranted. In this regard, and in light of the Board's favorable disposition above to grant service connection for diabetes mellitus, the evidence turns on whether the Veteran has neuropathy of his lower extremities and right eye ptosis that was caused or aggravated by his service-connected diabetes mellitus. At a July 2013 VA examination, the examiner opined that the Veteran has diabetic peripheral neuropathy of the lower extremities and reiterated that the Veteran's neuropathy most likely is due to his diabetes. The Board finds this opinion to be significantly probative as it was based on medical principles and applied to the facts of the case. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). The examiner considered the nature of the Veteran's neuropathy in proffering this opinion. As for the right eye ptosis, on VA eye examination in July 2013 the examiner opined that the Veteran had significant ptosis in his right eye which can be a manifestation of diabetic neuropathy. The Board also finds this opinion to be probative as it was rendered by a competent medical professional who considered the nature of the Veteran's right eye ptosis in determining a causal relationship between the right eye ptosis and diabetic neuropathy. As diabetic neuropathy is part and parcel of diabetes mellitus, the examiner essentially established a causal relationship between the right eye ptosis and the underlying diabetes mellitus, type II. To the extent the examiner couched the opinion in terms of "can be," the Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Further, this opinion is uncontroverted by the other competent evidence of record. The Board finds that the foregoing evidence is at the very least in relative equipoise as to whether the Veteran currently has neuropathy of his lower extremities and right eye ptosis that was caused by his service-connected diabetes mellitus, type II. In resolving all doubt in his favor, the Board concludes that service connection is warranted for neuropathy of the lower extremities and for right eye ptosis, both as secondary to the service-connected diabetes mellitus, type II. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for diabetes mellitus, type II, is granted. Service connection for neuropathy of the lower extremities, as secondary to the service-connected diabetes mellitus, type II, is granted. Service connection for right eye ptosis, as secondary to the service-connected diabetes mellitus, type II, is granted. REMAND A remand is necessary for new VA examinations discussed below as the previous VA examinations are inadequate. As for the Veteran's claim for a skin disorder, the Veteran in September 2012 testified that he previously had skin cancer and that his skin problems are related to service as he had extensive sun exposure during service in Korea from 1972 to 1973 and was exposed to Agent Orange by servicing and riding jeeps transported to Korea from Vietnam. Service treatment records dated in August 1972 show the Veteran had athlete's foot. Post-service medical records show that the Veteran's skin disorder included tinea pedis, onychomycosis, ichthyoses, skin cancer of the left clavicular area, squamous cell carcinoma of the left forehead and chest, and basal cell carcinoma of the chest and right anterior scalp. See private and VA medical records dated from September 2007 to February 2013. On VA examination in July 2013, the examiner diagnosed dermatitis but did not provide an opinion regarding the etiology of the Veteran's skin disorder as requested by the Board in its May 2013 remand directives. 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. See Stegall v. West, 11 Vet. App 268 (1998). Thus, another opinion must be obtained regarding the Veteran's skin disability. As for the Veteran's service connection claim for a circulatory disorder of the lower extremities, in September 2012, the Veteran testified that he began having circulation problems after he was diagnosed with diabetes and that his VA doctor, Dr. S., told him that his circulatory disorder could be related to his diabetes mellitus. However, on VA examination in July 2013 the examiner opined that the Veteran's only circulatory disorder was venous stasis of the lower extremities which would be due to his congestive heart failure and obesity and was not related to any military service nor aggravated by diabetes. As the examiner did not provide any rationale for the opinion that diabetes mellitus did not aggravate the circulatory disorder the opinion is inadequate. Similarly, on VA examination in July 2013 the examiner did not provide an adequate opinion regarding the Veteran's service connection claim for a cardiovascular disorder as the examiner opined that the Veteran's congestive heart failure was not caused or aggravated by his diabetes mellitus as the diagnosis of congestive heart failure preceded diabetes mellitus. As with the circulatory disorder the examiner did not provide any rationale for the determination that diabetes mellitus did not aggravate the congestive heart failure. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As for the Veteran's claim of service connection for an eye disability, other than right eye ptosis, on VA eye examination in July 2013 the examiner opined that the Veteran did not have retinopathy and instead rendered a diagnosis of blepharochalasis with visual field loss in both eyes. Another VA eye examination is necessary as the July 2013 VA examiner did not address the etiology of the Veteran's blepharochalasis with visual field loss. VA is obliged to provide an examination when the record contains competent evidence of a current disability and the disability may be associated with service or with another service-connected disability, but there is insufficient competent evidence on file to decide the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lastly, the Veteran's most recent VA treatment records in the claims file are dated in May 2013. Thus, any VA treatment records from May 2013 onward should be obtained. Further, prior to obtaining any opinion, the Veteran's assistance should be obtained to ensure that copies of any additional outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Issue to the Veteran a VCAA notice letter pertaining to the claims remaining on appeal. In particular, this correspondence should include the criteria necessary to support claims for service connection on direct and secondary bases. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In addition to any records that the Veteran identifies, obtain and associate any outstanding VA treatment records from May 2013 to the present. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his heart disorder and circulatory disorder of the lower extremities After reviewing the claims folder and examining the Veteran the examiner is asked to address the following: a.) Identify/diagnose all current heart disorders and circulatory disorder of the lower extremities. b.) For each identified heart disorder, to include congestive heart failure, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. The examiner must consider the Veteran's credible contentions that he was exposed to Agent Orange during service in Korea as he serviced, painted, and rode on jeeps that came from Vietnam without protective gear. See September 2012 Board hearing transcript and Veteran's March 2009 statement. c.) Whether it is at least as likely as not (50 percent probability or more) that each identified heart disorder, to include congestive heart failure, was aggravated by the service-connected diabetes mellitus. If the Veteran is found to have a heart disorder that is aggravated by the service-connected diabetes mellitus, the examiner should quantify the approximate degree of aggravation. d.) Whether it is at least as likely as not (50 percent probability or more) that each identified circulatory disorder of the lower extremities, to include venous stasis, was aggravated by the service-connected diabetes mellitus and/or the service-connected diabetic neuropathy. If the Veteran is found to have a circulatory disorder of the lower extremities that is aggravated by a service-connected disability, the examiner should quantify the approximate degree of aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. The examiner should consider the Veteran's September 2012 testimony that he began having circulation problems after he was diagnosed with diabetes mellitus. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 4. Also, schedule the Veteran for a VA examination to determine the nature and etiology of his skin disorder. After reviewing the claims folder and examining the Veteran the examiner is asked to address the following: a.) Identify and reconcile the Veteran's various skin diagnoses. The examiner must consider that post-service medical records show that the Veteran's skin disorder includes dermatitis, tinea pedis, onychomycosis, ichthyosis, skin cancer of the left clavicular area, squamous cell carcinoma of the left forehead and chest, and basal cell carcinoma of the chest and right anterior scalp. See private and VA medical records dated from September 2007 to February 2013 and July 2013 VA skin examination. b.) For each identified skin disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. The examiner must address the Veteran's credible contentions that during service in Korea he had both sun exposure and exposure to Agent Orange as he serviced, painted, and rode on jeeps that came from Vietnam without protective gear. See September 2012 Board hearing transcript and Veteran's March 2009 statement. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and that a detailed rationale must be provided for why an opinion cannot be rendered. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of his eye disorder. After reviewing the claims folder and examining the Veteran the examiner is asked to address the following: a.) Identify/diagnose all current eye disorders. b.) For each identified eye disorder, (other than right eye ptosis) to include blepharochalasis with visual field loss in both eyes, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that it was incurred during service. c.) Whether it is at least as likely as not (50 percent probability or more) that each identified eye disorder (other than right eye ptosis), to include blepharochalasis with visual field loss in both eyes, was caused or aggravated by a service-connected disability to include diabetes mellitus. If the Veteran is found to have an eye disorder that is aggravated by a service-connected disability, the examiner should quantify the approximate degree of aggravation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. If the examiner cannot provide an opinion, the examiner must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 6. After completing the above actions and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought is not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to help procure treatment records, and his failure to report for a scheduled VA examination, may impact the determination made. 38 C.F.R. § 3.655 (2015). The Veteran also is advised that he has the right to submit additional evidence and argument, whether himself or through his representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs