Citation Nr: 1603759	
Decision Date: 02/03/16    Archive Date: 02/11/16

DOCKET NO.  14-20 280	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wichita, Kansas


THE ISSUES

1.  Entitlement to an evaluation for left lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter.

2.  Entitlement to a separate evaluation for left lower extremity neuropathy
(femoral nerve) in excess of 20 percent.

3.  Entitlement to an evaluation for right lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter.

4.  Entitlement to a separate evaluation for right lower extremity neuropathy (femoral nerve) in excess of 20 percent.

5.  Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus.

6.  Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.

7.  Entitlement to an evaluation in excess of 20 percent for diabetes mellitus.

8.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Juliano, Counsel


INTRODUCTION

The Veteran served on active duty from June 1962 to June 1969.

These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2012 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.

In June 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Wichita, Kansas.  A transcript of the proceeding has been associated with the claims file.

With regard to the claims for higher initial ratings for lower extremity peripheral neuropathy, an April 2012 rating decision awarded service connection for bilateral lower extremity peripheral neuropathy (sciatic nerve), and assigned 10 percent ratings, effective June 30, 2011.  Within one year of the April 2012 rating decision, an October 2012 VA examination was performed relating to the Veteran's peripheral neuropathy, and more recent VA treatment records were also associated with the file.  See 38 C.F.R. § 3.156(b) (2015).  A January 2013 rating decision readjudicated the claims, which decision awarded higher 20 percent initial ratings (sciatic nerve), effective August 13, 2012.  The Veteran filed a June 2013 notice of disagreement.  A March 2015 rating decision awarded additional 20 percent ratings for the Veteran's lower extremity peripheral neuropathy (femoral nerve), effective June 2, 2014.  As these awards by the RO did not constitute a grant of the full benefit sought on appeal, these matters remained on appeal before the Board.  See AB v. Brown, 6 Vet. App. 35 (1993).  However, at the June 2015 Board hearing, and in writing in June 2015, the Veteran expressed that he wished to withdraw his appeals of the initial ratings for his lower extremity peripheral neuropathy.  Therefore, these matters involving entitlement to higher initial ratings for his lower extremity peripheral neuropathy are dismissed herein.

However, the Board acknowledges that most recently, after further VA examination, a November 2015 rating decision denied entitlement to higher evaluations for the Veteran's lower extremity peripheral neuropathy, and the Veteran filed a November 2015 "notice of disagreement" with respect to that decision.  The Board notes that the November 2015 rating decision erroneously cited that an April 2015 increased rating claim had been filed, as the claim for higher initial ratings was already on appeal before the Board in April 2015, and therefore, there could be no new claim at that time, and no second notice of disagreement.  As explained above, however, in June 2015, the Veteran expressed his desire to withdraw his appeal, and therefore his initial rating claim is being dismissed herein.  Thus, the Veteran's expression of disagreement in November 2015 with his ratings for his lower extremity peripheral neuropathy will be referred herein (below) for adjudication by the AOJ as relating to a new claim for increased ratings.

The same November 2015 rating decision denied entitlement to an increased evaluation in excess of 20 percent for diabetes mellitus, and entitlement to a TDIU.  In November 2015, the Veteran filed a notice of disagreement.  Although disagreement was not expressed specifically regarding the denial of a TDIU, the Board acknowledges that such claim is part and parcel to the claim for a higher rating for his diabetes mellitus.  Therefore, both claims are being remanded herein for the issuance of a statement of the case (SOC).  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (entitlement to a TDIU is part and parcel to a claim for an increased rating).

Recently, several VA treatment records, VA examination reports, and VA medical opinions were associated with the claims file after the issuance of the May 2014 and March 2015 statements of the case (SOCs), but the Veteran's claims were not subsequently readjudicated by the AOJ.  However, the Board finds such to be harmless, because the Veteran's claim for service connection for bilateral upper extremity peripheral neuropathy is being granted herein, his claim for service connection for hypertension is being remanded, and his claims for higher initial ratings for bilateral lower extremity peripheral neuropathy are dismissed herein as withdrawn.  See 38 C.F.R. § 20.1304 (2015).

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

The issues of entitlement to increased ratings for bilateral lower extremity neuropathy (both sciatic and femoral nerve ratings) have been raised by the record, but have not been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action.  See Correspondence, November 2015.

The issues of entitlement to service connection for hypertension as secondary to diabetes mellitus, entitlement to an evaluation in excess of 20 percent for diabetes mellitus, and entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  In June 2015, before the Board promulgated a decision, the Veteran expressed at the Board hearing and in writing his desire to withdraw from appellate review his claim for entitlement to an evaluation for left lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter.

2.  In June 2015, before the Board promulgated a decision, the Veteran expressed at the Board hearing and in writing his desire to withdraw from appellate review his claim for entitlement to an evaluation for left lower extremity neuropathy (femoral nerve) in excess of 20 percent.

3.  In June 2015, before the Board promulgated a decision, the Veteran expressed at the Board hearing and in writing his desire to withdraw from appellate review his claim for entitlement to an evaluation for right lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter.

4.  In June 2015, before the Board promulgated a decision, the Veteran expressed at the Board hearing and in writing his desire to withdraw from appellate review his claim for entitlement to an evaluation for right lower extremity neuropathy (femoral nerve) in excess of 20 percent.

5.  The Veteran's bilateral upper extremity peripheral neuropathy is shown by the most probative evidence of record to be caused by service-connected disability (diabetes mellitus).


CONCLUSIONS OF LAW

1.  The criteria for withdrawal by the Veteran of an appeal of a claim for to an evaluation for left lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter, have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015).

2.  The criteria for withdrawal by the Veteran of an appeal of a claim of entitlement to an evaluation for left lower extremity neuropathy (femoral nerve) in excess of 20 percent have been met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015).

3.  The criteria for withdrawal by the Veteran of an appeal of a claim for entitlement to an evaluation for right lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter, have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015).

4.  The criteria for withdrawal by the Veteran of an appeal of a claim for entitlement to an evaluation for right lower extremity neuropathy (femoral nerve) in excess of 20 percent have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015).

5.  Service connection for bilateral upper extremity peripheral neuropathy is warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The Veteran's claims for higher ratings for his lower extremity neuropathy are dismissed as withdrawn by the Veteran, and his claim for service connection for bilateral upper extremity neuropathy is granted, as explained below.  As such, the Board finds that any error under the VCAA with regard to the Veteran's claims is moot.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II.  Analysis

A. Bilateral Lower Extremities

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2013).

With regard to the Veteran's claims for higher ratings for his bilateral lower extremity peripheral neuropathy (sciatic and femoral nerves), in June 2015, before the Board promulgated a decision in this matter, the Veteran submitted a written request to withdraw from appellate consideration his claims.  He likewise testified at the Board hearing that he wished to withdraw these claims from appellate consideration.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of the Veteran's claims for higher ratings for his bilateral lower extremity peripheral neuropathy (sciatic and femoral), and the claims must therefore be dismissed.

B.  Bilateral Upper Extremities

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2014).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015).

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2015).  Service connection may 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) (2015).

To establish service connection, the evidence generally must show: "(1) the existence of a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

For veterans who served on active duty continuously for 90 days or more during a period of war or after December 31, 1946, service connection may be awarded on a presumptive basis for certain listed "chronic" diseases in 38 C.F.R. § 3.309(a), that manifest to a compensable degree within a prescribed time period, which list of chronic diseases does not include peripheral neuropathy.  38 U.S.C.A. §§ 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).

A veteran who "during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013).

In the case of veterans who have been exposed to an herbicide agent during active service, 38 C.F.R. § 3.309(e) provides for presumptive service connection for certain listed diseases, including early onset peripheral neuropathy.  Prior to revision, the list of diseases in 38 C.F.R. § 3.309(e) included "acute and subacute peripheral neuropathy," defined in a Note as "transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset).  See 38 C.F.R. § 3.309(e) (2012 and 2015).  The Board notes, however, that there is no evidence of diagnosed early onset peripheral neuropathy, or acute or subacute peripheral neuropathy, of the upper extremities.  See, e.g., QTC Opinion (VVA), December 2015 (examiner reviewed file and found no evidence of early onset peripheral neuropathy).  Therefore, service connection on a direct basis may not be presumed.

A "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected."  38 C.F.R. § 3.310(a) (2015).  "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.  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."  38 C.F.R. § 3.310(b) (2015); Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran served on active duty from June 1962 to June 1969.  He claims that he has peripheral neuropathy of the upper extremities due to his service-connected diabetes mellitus.  In the alternative, he has alleged it was caused by exposure to Agent Orange during his service in Vietnam, or secondary to a back condition.

As an initial matter, the Board notes that the Veteran is presently service-connected for diabetes mellitus on a presumptive basis based on his service in Vietnam, and he is also service-connected for peripheral neuropathy of the lower extremities secondary to his diabetes mellitus.

Although the Veteran is shown to have service in Vietnam based on which herbicide exposure may be presumed, as explained above, there is no evidence of early onset peripheral neuropathy of the upper extremities, or acute or subacute peripheral neuropathy, for which service connection may have been awarded on a presumptive basis.  See 38 C.F.R. §§ 3.307, 3.309(e) (2012 and 2015).  The Veteran is not precluded, however, from proving entitlement to service connection on a direct basis.  See Combee v. Brown, 5 Vet. App. 248 (1993).

The Veteran was formally diagnosed at the VA medical center with impaired fasting glucose in January 2008, and ultimately diagnosed with diabetes mellitus in April 2011.  Previously, however, the Board acknowledges that the VA treatment records show the Veteran was fitted for diabetic stockings in 2007.  See VBMS received June 2011 at 20-23, 46 of 130, and received August 2008 at 22 and 25 of 56.

Regarding the Veteran's peripheral neuropathy, the VA treatment records show the Veteran reported lower extremity numbness first in September 2006, then right wrist numbness in January 2008.  See VBMS received August 2008 at 3, 49 of 56.  An October 2010 record reflects he reported numbness and weakness in his arms and legs.  See VBMS received December 2010 at 19 of 32.  A December 2010 VA EMG report reflects an impression of moderate axonal sensorimotor polyneuropathy with slow ongoing axonal loss involving both legs, with no evidence for superimposed lumbosacral radiculopathy.  The Board notes, however, that apparently, only the lower extremities were tested.  See, e.g., VA examination report, October 2012.  An August 2011 VA neurological treatment record notes the Veteran's history of diabetes mellitus and his complaints of sensory symptoms in his legs and arms, and that his EMG and cervical and lumbar spine MRIs were reviewed.  The neurologist diagnosed peripheral neuropathy with diabetes mellitus and a history of vitamin b12 deficiency, and the neurologist noted that he emphasized diabetes control.  See VBMS received September 2011 at 6.  Subsequent VA treatment records reflect the Veteran was followed for "diabetes mellitus with neurological manifestations" (as per the problem lists).  See, e.g., October 2011(CAPRI-VVA received April 2012 at 102 of 109).

An October 2011 VA examination report notes the Veteran's history of being followed for impaired fasting glucose beginning in 2007, and that he was diagnosed with "diabetes type II with neurological manifestations" and peripheral neuropathy in 2011.  The VA examiner opined that the Veteran had diabetic peripheral neuropathy of the lower extremities.  Although the examiner noted some upper extremity symptoms such as paresthesias/dysesthesias and numbness, the VA examiner did not record a diagnosis of upper extremity diabetic peripheral neuropathy, but no explanation was provided.

Similarly, an October 2012 VA examination report also reflects diagnosed diabetic neuropathy of the lower extremities, but not the upper extremities.

After further upper extremity complaints, EMG testing of the upper extremities was ordered.  See VVA received November 2015 at 649.  A January 2013 EMG report reflects diagnosed peripheral neuropathy, sensory greater than motor, with predominantly axonal and mild demyelination features in both upper extremities.  Bilateral carpal tunnel syndrome was also diagnosed, and noted as moderate to severe on the left side, and probably very severe on the right side.  See VVA received November 2015 at 599.  

A June 2014 VA examination report reflects the VA examiner physically examined the Veteran, reviewed the claims file, and opined that the Veteran had diabetic peripheral neuropathy of both the upper and lower extremities.  The VA examiner noted the Veteran's history of diagnosed diabetes, and diagnosed diabetic peripheral neuropathy of the lower extremities since 2011 and of the upper extremities since 2013.  The examiner also noted that the January 2013 EMG test results showing diagnosed peripheral neuropathy of the upper extremities.  

In light of the above evidence of record, the Board finds that service connection for peripheral neuropathy of the left and right upper extremities caused by service-connected diabetes mellitus is warranted.  As shown above, the Veteran has been followed for peripheral neuropathy of the upper extremities associated with his diabetes at the VA medical center since 2013 (and lower extremities since 2011, for which he is already service-connected).  Also, the July 2014 VA examiner examined the Veteran, reviewed the claims file including the 2013 EMG of the Veteran's upper extremities, and opined that the Veteran has had diabetic neuropathy of the upper extremities since 2013.

The Board acknowledges that the October 2011 and October 2012 VA examiners diagnosed diabetic peripheral neuropathy of the lower extremities, but not the upper extremities.  As noted above, however, no rationale was provided by these examiners.  In addition, the Board is cognizant that EMG testing of the Veteran's upper extremities confirming his peripheral neuropathy of the upper extremities had apparently not yet been performed until January 2013 (as the 2011 testing was apparently only for the lower extremities).

The Board also acknowledges a February 2015 VA examination report in which the examiner opined that the Veteran has diabetic peripheral neuropathy of the lower extremities, but not the upper extremities.  The examiner reasoned in part that the Veteran had a fall a few years prior at K-mart injuring his right shoulder and clavicle that caused nerve damage to his right arm, and that the Veteran has diagnosed carpal tunnel syndrome.  As shown above, however, the Veteran was diagnosed with peripheral neuropathy on EMG testing in 2013 bilaterally, in addition to carpal tunnel syndrome, and which carpal tunnel syndrome was noted as moderate to severe in the Veteran's left side (and probably very severe on the right side).  The examiner further opined that a January 2011 VA neurology record noted the Veteran's neuropathy as "idiopathic."  The Board notes, however, that the VA neurologist noted in that January 2011 treatment record that he could not locate the December 2010 EMG report for review, and that he was referencing the Veteran's handwritten notes showing "idiopathic" polyneuropathy.  The Board adds that the January 2011 neurologist noted that the Veteran had not been diagnosed with diabetes, but three months later the Veteran ultimately was diagnosed with diabetes.  With regard to the Veteran's service-connected diabetes, the VA examiner tended to discredit the diagnosis, noting that the Veteran had elevated blood sugar in April 2011 because he was sick and on steroids.  At the same time, the examiner later noted that the Veteran "most likely has diabetes" and that his EMG in 2010 "demonstrated diabetic peripheral neuropathy in the lower legs."  The examiner apparently missed or failed to review the 2013 EMG report relating to the Veteran's upper extremities.  In light of the VA examiner's troubling rationale, the Board finds the examiner's opinion to be of little probative value.

The Board also acknowledges a February 2015 VA medical opinion by another examiner in which the examiner opined that the Veteran's peripheral neuropathy was not caused or aggravated by his diabetes mellitus.  The Board, however, finds this particular medical opinion to lack probative value because the examiner reasoned in part that the Veteran's "supposed" diabetes diagnosis was in error, which the Board notes contradicts years of VA treatment records showing the Veteran has been followed for impaired fasting glucose since January 2008 and diagnosed diabetes mellitus since 2011.  The examiner further reasoned that the Veteran had right carpal tunnel syndrome that the examiner attributed to a work-related accident (the Board acknowledges the Veteran underwent a February 2013 right carpal tunnel release).  However, as shown above, the Veteran was shown on EMG testing to have both peripheral neuropathy in his upper extremities, as well as carpal tunnel syndrome bilaterally.  The Board adds that the carpal tunnel syndrome of the left side was shown to be moderate to severe.  Therefore, the Board finds this medical opinion to be of little probative value.

Finally, the Board acknowledges that a July 2015 VA medical opinion was also obtained, which reflects that VA examiner opined, albeit brief, that the Veteran does not have peripheral neuropathy, reasoning that the Veteran has carpal tunnel syndrome.  As explained above, however, the 2013 EMG testing of the upper extremities showed both peripheral neuropathy, and carpal tunnel syndrome.  The Board ultimately places more probative value on the objective EMG testing results, and therefore finds this examiner's opinion to have less probative value.

Therefore, the Board concludes that service connection for peripheral neuropathy of the left and right upper extremities as secondary to diabetes mellitus is warranted.


ORDER

Entitlement to an evaluation for left lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter, is dismissed.

Entitlement to a separate evaluation for left lower extremity neuropathy
(femoral nerve) in excess of 20 percent is dismissed.

Entitlement to an evaluation for right lower extremity neuropathy (sciatic nerve) in excess of 10 percent prior to August 13, 2012, and 20 percent thereafter, is dismissed.

Entitlement to a separate evaluation for right lower extremity neuropathy (femoral nerve) in excess of 20 percent is dismissed.

Entitlement to service connection for bilateral upper extremity peripheral neuropathy secondary to diabetes mellitus is granted.


REMAND

A.  Hypertension

The Veteran also claims that he has hypertension that is caused or aggravated by his service-connected diabetes mellitus.  In the alternative, he asserts it was caused by Agent Orange exposure.  See Board hearing transcript.

As an initial matter, the Board notes that the Veteran's service treatment records are silent as to hypertension.  Post-service, the Veteran has been diagnosed with hypertension since 2006.

The Veteran was afforded a July 2015 VA examination relating to his claimed hypertension, which reflects the VA examiner opined that the Veteran's hypertension is aggravated by his diabetes mellitus, but includes no rationale for the conclusion.  Based thereon, regrettably, the Board finds this matter should be remanded so that the VA examiner may provide a rationale for his conclusion.

In addition, as noted above, the Veteran alleged at the Board hearing that his hypertension was caused by herbicide exposure in service, which herbicide exposure is presumed based on his Vietnam service.  See 38 C.F.R. § 3.307 (2015).  Hypertension, however, is not one of the listed diseases in 38 C.F.R. § 3.309(e) for which service connection may be presumed based on herbicide exposure.  

At the same time, however, the Board acknowledges that the National Academy of Sciences (NAS) Institute of Medicine's Veterans and Agent Orange: Update 2010 (2010 Update) concluded that there is "limited or suggestive" evidence of an association between exposure to Agent Orange and hypertension.  See Nat'l Acad. of Sci., Inst. of Med., Veterans & Agent Orange: Update 2010 (2011) at 694.  The Secretary discussed the 2006, 2008, and 2010 Updates in the Federal Register, which contain the same analysis with respect to hypertension.  See, e.g., 77 Fed. Reg. 47,924 -01 (Aug. 10, 2012) (noting "[i]n Veterans and Agent Orange: Update 2006 . . . and Update 2008, NAS elevated hypertension to the 'Limited or Suggestive Evidence' category"); 75 Fed. Reg. 32,540, 32,549 (June 8, 2010) ("In Update 2006, NAS concluded that there was 'limited or suggestive evidence of an association between exposure to the compounds of interest and hypertension.'"); 75 Fed. Reg. 81,332, 81,333 (NAS, in 2008, categorized certain health outcomes, including hypertension, to have "'limited or suggestive evidence of an association.'  This category is defined to mean that evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.").

In light of the 2010 NAS Update noting there is "limited or suggestive evidence" of an association between Agent Orange exposure and hypertension, which does not rule out a possibility of a connection, the Board also finds that the VA examiner should be asked to provide an opinion as to whether the Veteran's hypertension was caused by his presumed herbicide exposure in Vietnam.

In addition, in June 2014, the Veteran's representative referenced a March 2011 VA examination report as having diagnosed hypertension, but providing no etiological opinion.  A copy of such report, however, is missing from the claims file.  The Board does note, however, that the May 2013 rating decision makes no reference to any March 2011 VA examination report - or any VA examination report.  There is an October 2011 VA examination report of record, which reflects that the examiner, when asked whether the Veteran had any of a list of diseases on the form due to his diabetes mellitus, did not check the box for "hypertension (in the presence of diabetic renal disease)," and the examiner did not check the box indicating the Veteran's diabetes mellitus aggravated his hypertension, but no rationale was provided.  An April 2012 addendum opinion again reflects the same.  Therefore, on remand, a copy of any missing March 2011 VA examination report relating to the Veteran's hypertension should be associated with the claims file.
As a final matter, the Veteran has alleged on several occasions that he underwent a VA Agent Orange examination in 1982, which report is not of record.  Therefore, any missing 1982 VA Agent Orange examination should also be associated with the claims file.

B.  Diabetes Mellitus and TDIU

The Veteran's diabetes mellitus is currently assigned a 20 percent disability rating, effective June 30, 2011.  The Veteran seeks an increased rating.  He also seeks a TDIU.

By way of background, an April 2012 rating decision awarded service connection for diabetes mellitus and assigned a 20 percent rating.  The Veteran did not file a notice of disagreement with regard to the initial rating.  In August 2012, the Veteran filed an increased rating claim, which was denied by a January 2013 rating decision.  The Veteran did not file a notice of disagreement with regard to that claim (although a June 2013 notice of disagreement was filed relating to other claims).  In April 2015, the Veteran filed a formal claim for entitlement to a TDIU, apparently also considered by the RO as an April 2015 claim for an increased rating for his diabetes mellitus.  A November 2015 rating decision denied the claims.  In November 2015, the Veteran filed a notice of disagreement, but no SOC has been issued.  Although disagreement was not expressed specifically regarding the denial of a TDIU, the Board acknowledges that such claim is part and parcel to the increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Therefore, these claims are remanded herein so that the Veteran may be provided with a SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16- 92).  The claims should be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims file any missing March 2011 VA examination report reflecting diagnosed hypertension (but apparently no etiological opinion), which was referenced by the Veteran's representative in June 2014 correspondence.  The representative noted it was dated March 23, 2011.  If such report is found to not exist or to be unable to be found, this should be noted in the claims file, and the Veteran and his representative should be notified of such.

2.  Associate with the claims file a copy of any missing VA Agent Orange examination dated around 1982.  If it is found to be unavailable, this should be specifically noted in the claims file, and the Veteran and his representative should be notified of such.

3.  After all of the above development has been completed, ask the same VA examiner who provided the July 2015 VA examination report and opinion to provide a rationale for his opinion that the Veteran's hypertension is aggravated by his service-connected diabetes mellitus.

Also, ask the VA examiner to provide a medical opinion as to whether it is "at least as likely as not" that the Veteran's hypertension was caused by his presumed herbicide exposure in Vietnam.

The claims file should be made available to the examiner for review, including a copy of this remand, and the examiner should note that it was reviewed in their report.  

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

Note that the mere fact that a presumption has not been established for hypertension is not dispositive of the issue of nexus.  Consideration must still be given to the Veteran's exposure to herbicides, and the NAS study that does not rule out an association.

4.  Then, readjudicate the Veteran's claim for service connection for hypertension.  If it remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC).  After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review.

5.  Issue the Veteran a Statement of the Case with regard to the issues of entitlement to an increased rating for service-connected diabetes mellitus, and entitlement to a TDIU.  Thereafter, the issues are to be returned to the Board only if an adequate and timely substantive appeal is filed.

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 appeal 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 2014).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs