Citation Nr: 1622029 Decision Date: 06/02/16 Archive Date: 06/13/16 DOCKET NO. 12-14 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for diabetes mellitus, type II (DM II). 2. Entitlement to initial compensable rating for peripheral neuropathy of the right lower extremity prior to January 12, 2010, and to a rating higher than 10 percent from January 12, 2010, forward. 3. Entitlement to initial compensable rating for peripheral neuropathy of the left lower extremity prior to January 12, 2010, and to a rating higher than 10 percent from January 12, 2010, forward. 4. Entitlement to service connection for hypertension, as secondary due to service-connected DM II. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for hypertension, but granted service connection for DM II and peripheral neuropathy of the right and left lower extremities. The RO granted an initial 20 percent rating for DM II assigning an effective date of February 20, 2009 and also assigned noncompensable ratings for peripheral neuropathy of the left and right (bilateral) lower extremities, respectively, effective February 20, 2009. In February 2014, the RO increased the ratings to 10 percent for peripheral neuropathy of the bilateral lower extremities, respectively, effective January 12, 2010. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2016; a copy of the transcript is of record. The Board has also taken jurisdiction of the issue of entitlement to TDIU, as the Veteran indicated in February 2016 that he had been unable to work since June 2011 due to his service-connected disabilities. This issue is part and parcel of his claims for increased ratings for DM II and peripheral neuropathy of the bilateral lower extremities. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); 38 C.F.R. §§ 3.340, 4.16 (2015). The issues of entitlement to higher ratings for diabetes mellitus, peripheral neuropathy of the right and left lower extremities, 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). FINDING OF FACT The Veteran's service-connected DM II caused his hypertension. CONCLUSION OF LAW The criteria for service connection for hypertension as secondary to service-connected diabetes mellitus, type II, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Hypertension The law provides that service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Secondary service connection shall be awarded when a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, it is not in dispute that service connection is in effect for DM II and that the Veteran has a current diagnosis of hypertension. The matter, therefore, turns on whether the hypertension was proximately due to or aggravated by the service-connected diabetes. A VA examination in August 2009 contained an opinion that hypertension was not a complication associated with the Veteran's DM II on the basis that there was no evidence of renal manifestations. The examiner also opined that the Veteran's hypertension was not worsened or increased by DM II. Subsequently, in June 2015, the RO granted the Veteran's claim for kidney disease secondary to DM II. Additionally, the Veteran submitted a January 2016 private medical opinion from his treating physician, Dr. R.D.N., who has treated the Veteran since June 2009. Dr. R.D.N. opined that the Veteran's hypertension was caused by the Veteran's advanced DM II. Consequently, there is disagreement amongst those who have commented concerning whether the Veteran's hypertension is attributable to DM II. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, however, nor is "definite" or "obvious" etiology; instead, this posited correlation need only be an "as likely as not" possibility. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Greater weight may be placed on one physician's opinion than another's depending on factors such as the reasoning employed by the physicians and whether (and the extent to which) they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, while the findings of a physician are medical conclusions that the Board cannot ignore or disregard, Willis v. Derwinski, 1 Vet. App. 66 (1991); the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The VA examiner and Dr. R.D.N. are competent medical authorities who had access to the pertinent facts at issue in this case, that is, the Veteran's history of hypertension in relation to his DM II. At the same time, Dr. R.D.N. had the additional information of the Veteran's subsequent development of diabetic nephropathy and has been his primary care physician since June 2009. The Board affords more probative value to Dr. R.D.N.'s opinion that the Veteran's hypertension was caused by his advanced DM II. Accordingly, the Board finds that the preponderance of the evidence supports claim of entitlement to service connection for hypertension . Therefore, entitlement to service connection for hypertension is warranted. ORDER Entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus is granted. REMAND Although the Board sincerely regrets the additional delay that will result from remanding the Veteran's remaining claims, it is necessary to ensure that there is a complete record upon which to decide these claims so that he is afforded every possible consideration. At the outset, the most recent supplemental statement of the case (SSOC) was issued in February 2014. Since that time, additional relevant evidence has been associated with the claims folder. Therefore, remand is required for the issuance of an additional SSOC. The Veteran was last provided a VA examination addressing his lower extremity peripheral neuropathy in May 2015. Since that time, the Veteran has asserted that the symptoms of his peripheral neuropathy have worsened. See February 2016 Transcript of Hearing (reflecting the Veteran's statements that his disability picture relevant to his peripheral neuropathy has "worsened" since his last VA examination). Evidence of record also suggests the possibility of a worsening of his diabetes mellitus subsequent to the last VA examination. Therefore, the Veteran must be afforded new VA examinations to determine the current level of severity of his service-connected disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). His updated VA and private medical treatment records should also be obtained. As the Veteran's claim for a TDIU is "inextricably intertwined" with his claims for higher ratings peripheral neuropathy of the bilateral lower extremities, so, too, must the Board remand his TDIU claim. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Implement the Board's decision granting service connection for hypertension. 2. Make arrangements to obtain the Veteran's VA treatment records, dated from August 2013 forward. 3. Make arrangements to obtain the Veteran's private treatment records, to include from Dr. Ross Nochimson dated from July 2013, Westside Regional Medical Center (Dr. Paul Ginsburg) dated from May 2013, Dr. Alberto Fernandez-Bravo dated from April 2010, Dr. Edward Deutsch dated from August 2013 and from Debra Tantillo LCSW dated from March 2010. 4. Upon completion of the foregoing, arrange for appropriate VA examinations to determine the severity of the Veteran's service-connected diabetes mellitus and peripheral neuropathy of the lower extremities. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be completed. 5. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational rehabilitation specialist, to evaluate the issue of entitlement to a TDIU. In conjunction with the examination, the claims file must be made available to and reviewed by the examiner. The examination report should indicate that this has been accomplished. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. After a full examination and review of the claims file, the examiner should identify all limitations imposed on the Veteran as a consequence of his service-connected disabilities (i.e., diabetes mellitus; peripheral neuropathy of the upper and lower extremities; hypertension, coronary artery disease; diabetic nephropathy; residuals of prostate cancer with erectile dysfunction; retinopathy; and residuals of a cerebrovascular accident) and opine as to the impact of the service-connected disabilities , to include in the aggregate, on his ability to secure and follow a substantially gainful occupation. The examiner must provide a comprehensive report including complete explanation for all opinions and conclusions reached, taking into account, and citing where appropriate, the evidence in the record, including the Veteran's reports of his history, his current symptomatology, and all associated functional and occupational limitations found. 6. Then, review the claims file and ensure that all requested development actions have been completed in full. If any VA examination report does not adequately respond to the above remand directives, it must be returned to the examiner for corrective action. 7. Finally, after completing any other development that may be indicated, readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs