Citation Nr: 1604267 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 09-29 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due exclusively to service-connected disabilities. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from November 1978 to February 2002, including in the southwest Asia theater of operations during the Persian Gulf War. In a December 2014 administrative decision issued during the pendency of this appeal, VA concluded that the Veteran's entire period of active service from November 1978 to February 2002 was considered honorable service for VA purposes. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied, in pertinent part, the Veteran's claim of service connection for diabetes mellitus. After the Veteran submitted additional evidence relevant to this claim in April 2008, the RO readjudicated it in an October 2008 rating decision. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). The Veteran disagreed with the October 2008 rating decision in January 2009. He perfected a timely appeal in July 2009 and requested a Central Office Board hearing. The Veteran failed to report for his Central Office Board hearing when it was scheduled in April 2015. Accordingly, his Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2015). The Board notes that, in statements on his July 2009 substantive appeal (VA Form 9), the Veteran asserted that he was entitled to a TDIU due exclusively to his service-connected disabilities. The RO interpreted this statement as a TDIU claim and adjudicated it for the first time in a May 2014 Supplemental Statement of Case (SSOC). Because the RO included the Veteran's TDIU claim in the May 2014 SSOC, the Board finds it reasonable to infer that the Veteran and his attorney were led to believe that this issue currently is on appeal although there is no notice of disagreement or timely substantive appeal. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) ("The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder."). Given the foregoing, the Board finds that it has jurisdiction over the Veteran's TDIU claim. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (finding that VA may waive timely filing of substantive appeal implicitly or explicitly and as to any issue or claim raised in substantive appeal). This appeal was processed using the Virtual VA (VVA) and Virtual Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issue of entitlement to a TDIU due exclusively to service-connected disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. FINDING OF FACT The record evidence shows that the Veteran initially was diagnosed as having diabetes mellitus in October 2002, within the first post-service year. CONCLUSION OF LAW Diabetes mellitus presumably was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his or her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. Given the favorable disposition of the action here with respect to the Veteran's claim of service connection for diabetes mellitus, which is not prejudicial to him, the Board need not assess VA's compliance with the VCAA with respect to this claim. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection for Diabetes Mellitus The Veteran contends that he incurred diabetes mellitus during active service or, alternatively, his current diabetes mellitus is related to service. He specifically contends that he initially incurred episodes of diabetes during active service and continued to experience these episodes after his service separation. Laws and Regulations Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of 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, including diabetes mellitus, 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker, the Federal Circuit overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an "organic disease of the nervous system" to the list of disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a)). Because diabetes mellitus is considered a "chronic" disability under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology remains valid in adjudicating the Veteran's claim. It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background and Analysis The Board finds that the evidence supports granting the Veteran's claim of service connection for diabetes mellitus on a presumptive basis. The Veteran contends that he initially incurred diabetes mellitus during episodes in active service and experienced continuous disability due to diabetes mellitus since his service separation. The record evidence supports his assertions regarding in-service incurrence of diabetes mellitus on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Veteran's available service treatment records show that, at his enlistment physical examination in November 1978, urinalysis was negative for sugar or albumin. These results were unchanged on subsequent periodic physical examination in June 1987, October 1988, and in May 1990. On periodic physical examination in May 1991, urinalysis was negative for sugar or albumin. It was noted that testing for diabetes mellitus in February 1988 had been negative. In September 2001, the Veteran declined to undergo a separation physical examination. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence supports granting service connection for diabetes mellitus on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. It shows that the Veteran currently experiences diabetes mellitus which is presumptively related to active service because he was diagnosed as having diabetes mellitus within the first post-service year (i.e., by February 2003). For example, the Veteran was hospitalized overnight in October 2002 at a U.S. Army Hospital for cardiovascular stress testing. On admission, the Veteran complained of sudden onset left trapezius discomfort shooting down the left arm and left thigh followed by an upper ache in his shoulder. His pain was relieved with nitroglycerin and he was admitted for monitoring and to rule out myocardial infarction. The Veteran also reported losing 80 pounds in the previous 12 months and "a huge amount of polyuria and polydipsia, drinking 2-3 gallons of water per day." No prior history of diabetes or coronary disease was noted. The Veteran's blood glucose initially was 485. He was started on oral hypoglycemics and long-acting insulin in the evening. The Veteran's glucose was reduced with medication "down into the low 100 range." The discharge diagnoses included new onset diabetes mellitus requiring insulin. On VA outpatient treatment in December 2005, the Veteran stated that he was doing well. He reported that he "may forget insulin once a week" and would skip his insulin in the mornings if his blood sugar was normal. The assessment included uncontrolled diabetes mellitus. The Veteran was advised to increase his glucose intake to 20 units in the morning and 15 units in the evening. He also was advised to increase his metformin go 1000 mg twice daily. The Veteran was hospitalized at a VA Medical Center in April 2006 with complaints of elevated blood glucose in the 700s. He stated that he had not taken his insulin "since Sunday." It was noted that he had not filled his insulin prescription since December 2005 although he reported that he had filled it online. The Veteran also reported experiencing polydipsia and polyuria and "an overall feeling of generalized malaise and weakness" for 3 weeks and had been vomiting daily. He was restarted on insulin. The VA clinician stated that there was "no evidence of any etiology for uncontrolled [blood sugar] other than" non-compliance with his diabetes medications. The diagnoses included diabetes mellitus type 2. The Board acknowledges that, following VA examination in June 2012, the VA examiner opined that it was less likely than not that the Veteran's diabetes mellitus was related to active service. The rationale for this opinion was that the Veteran's blood glucose levels between July 1997 and March 1998 were within normal limits and the Veteran's post-service VA outpatient treatment notes showed that he had not been diagnosed as having diabetes mellitus until 2006. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Having reviewed the June 2012 VA examination report, the Board finds that it is not probative on the issue of whether the Veteran's diabetes mellitus is related to active service. For example, the June 2012 VA examiner specifically was limited by the RO to a review of records dated prior to March 1998 because, at that time, the Veteran's subsequent service after March 1998 was considered dishonorable for VA disability compensation purposes. As noted in the Introduction, the RO subsequently determined in a December 2014 administrative decision that all of the Veteran's active service (including after March 1998) was honorable for VA purposes. The June 2012 VA examiner also did not address the Veteran's diagnosis of diabetes mellitus in October 2002 and stated inaccurately that, following service separation, the Veteran was diagnosed as having diabetes mellitus initially in 2006. Thus, the June 2012 opinion does not have a factual predicate in the record and is not supported by the clinical evidence. The Veteran has contended that he experienced diabetes mellitus in service and his current diabetes mellitus is related to service. The record evidence shows that he was diagnosed as having diabetes mellitus in October 2002, or within the first post-service year following his service separation in February 2002. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that, because the Veteran's diabetes mellitus is related to active service on a presumptive basis, service connection for diabetes mellitus is granted. ORDER Entitlement to service connection for diabetes mellitus is granted. REMAND The Veteran essentially contends that his service-connected disabilities, alone or in combination, prevent him from securing or following a substantially gainful occupation, entitling him to a TDIU. As noted in the Introduction, the Board has taken jurisdiction over the Veteran's TDIU claim. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claim can be adjudicated on the merits. The Board notes that, although the Veteran currently does not meet the scheduler criteria for a TDIU, entitlement to a TDIU may be established on an extraschedular basis, in exceptional cases, when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. See 38 C.F.R. §§ 4.16(a), (b) (2015). Service connection is in effect for cervical spine spondylosis with degenerative disc disease, evaluated as 30 percent disabling effective July 30, 2009, peripheral neuropathy of the right upper extremity, evaluated as 20 percent disabling effective April 30, 2008, peripheral neuropathy of the left upper extremity, evaluated as 20 percent disabling effective April 30, 2008, peripheral neuropathy of the right lower extremity, evaluated as 20 percent disabling effective April 30, 2008, peripheral neuropathy of the left lower extremity, evaluated as 20 percent disabling effective April 30, 2008, status-post open reduction internal fixation (ORIF) of the left ankle, evaluated as 20 percent disabling effective July 30, 2009, radiculopathy of the right lower extremity, evaluated as 20 percent disabling effective April 29, 2014, radiculopathy of the left lower extremity, evaluated as 20 percent disabling effective April 29, 2014, lumbar spine spondylosis, evaluated as 10 percent disabling effective January 19, 2006, degenerative medial meniscus of the right knee, evaluated as 10 percent disabling effective January 19, 2006, bilateral tinnitus, evaluated as 10 percent disabling effective January 19, 2006, hypertension, evaluated as 10 percent disabling effective April 23, 2008, bilateral hearing loss, evaluated as zero percent disabling effective January 19, 2006, and left ankle scars, evaluated as zero percent disabling effective April 29, 2014. The Veteran's combined disability rating for compensation is 100 percent effective April 29, 2014. See 38 C.F.R. § 4.25 (2015). The Board also has granted service connection for diabetes mellitus in this decision. Unfortunately, the Veteran has not identified which of his service-connected disabilities preclude his employability or if, in his view, all of his service-connected disabilities, in combination, preclude his employability. Thus, the Board finds that, on remand, the Veteran should be given the opportunity to complete a VA Form 21-8940 and, among other things, identify the service-connected disabilities which preclude his employability and provide a complete employment history. The Board next notes that the medical evidence of record does not address the impact of the Veteran's service-connected disabilities, alone or in combination, on his employability. The Board observes in this regard that VA's duty to assist includes obtaining an examination where necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 79. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine the impact of his service-connected disabilities, alone or in combination, on his employability. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his attorney with notice of the criteria for establishing entitlement to a TDIU, including on an extraschedular basis. Send the Veteran and his attorney a letter requesting that he provide sufficient information and, if necessary, authorizations to enable VA to obtain any additional evidence pertinent to the claim for a TDIU. Specifically, the Veteran should be asked to complete and sign a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, and a VA Form 21-4192, Request for Employment Information In Connection With Claim for Disability Benefits. Each executed form should be returned to VA. All records and responses should be associated with the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the claims file. The Veteran and his attorney should be notified of unsuccessful efforts in this regard in order to allow the Veteran the opportunity to submit the records for VA review. Advise the Veteran and his attorney that it is ultimately the Veteran's responsibility to obtain (from his employer) and submit (to VA) his employment records, particularly those pertaining to lost time or sick leave as well as those relating to the facts and circumstances of separation, termination or retirement. Advise the Veteran that he should submit evidence documenting any attempts to obtain employment, to include the number and status of job applications filed, to include any rejection letters of employment and that he should submit evidence documenting marginal employment, if any, secured that resulted in earned annual income that does (or did) not exceed the poverty threshold for one person. 2. Thereafter, schedule the Veteran for appropriate examination to determine whether his service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical and employment history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, the examiner is asked to provide a full description of the effects of the service-connected disabilities on the veteran's ordinary activity, especially on his ability to work. A complete rationale must be provided for any opinions expressed. If any requested opinion(s) cannot be provided without resorting to speculation, then the examiner must explain why this is so. The examiner is advised that service connection is in effect for cervical spine spondylosis with degenerative disc disease, peripheral neuropathy of the right upper extremity, peripheral neuropathy of the left upper extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, status-post open reduction internal fixation (ORIF) of the left ankle, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, lumbar spine spondylosis, degenerative medial meniscus of the right knee, bilateral tinnitus, hypertension, bilateral hearing loss, left ankle scars, and for diabetes mellitus. 3. The Veteran should be given adequate notice of the requested examination which includes advising him of the consequences of his failure to report to the examination. If he fails to report to the examination, then this fact should be noted in the claims file and a copy of the scheduling of examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims file. 4. Review all evidence received since the last prior adjudication and readjudicate the Veteran's claim of entitlement to a TDIU, to include consideration of whether the requirements for referral to the Director, Compensation Service, have been invoked under 38 C.F.R. § 4.16(b). If the determination remains unfavorable to the Veteran, then the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs