Citation Nr: 1751350 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 14-06 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Service connection for diabetes mellitus, type II. 2. Entitlement to a rating in excess of 10 percent for plica syndrome left knee status post excision (left knee disability). 3. Entitlement to a compensable rating for degenerative arthritis of the thoracolumbar spine (back disability). 4. Entitlement to a compensable rating for carpal tunnel syndrome of the bilateral wrists. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran had active service from May 1984 to September 1984 and from September 1987 to June 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for type 2 diabetes mellitus, denied compensable ratings for back, bilateral carpel tunnel syndrome, and bilateral hearing loss disabilities, and granted a 10 percent rating for left knee disability, effective from March 10, 2011(the receipt date of the claim for an increased rating). During the appeal period, in a January 2014 rating decision, the RO awarded an increased 10 percent rating for the back disability, also effective from March 10, 2011. Despite this grant, a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, this matter remains on appeal. Regarding characterization of the appeal, the Board has condensed the claim for a compensable rating for carpel tunnel syndrome of the right and left wrists into a single issue, as reflected on the title page. The Board additionally notes after certification of the issues to the Board, additional relevant medical evidence has been added to the record related to the Veteran's claim for service connection for diabetes mellitus with a waiver of initial RO consideration. Thus, the Board will consider this evidence in the first instance and notes that the Veteran is not prejudiced as the only claim being decided, for service connection for diabetes mellitus, is being granted in full. As a final preliminary matter, in the March 2017 Board hearing, the Veteran has raised the issue of service connection for a right knee disability, to include as secondary to his service-connected disabilities. As the RO has not yet adjudicated this issue, it is referred to the RO for appropriate action, to include providing the Veteran with the appropriate forms. See 38 C.F.R. §§ 19.9(b) (continuing to provide for referral to AOJ of issues not yet adjudicated); 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has diabetes mellitus that is attributable to his active military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for diabetes mellitus are met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). In order to prevail on the issue of service connection for any particular disability, there must generally be a showing of the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). In addition to the general service connection principles noted above, veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including diabetes mellitus, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts that his current diabetes mellitus is related to his service, to specifically include the elevated blood sugar readings in service. The Board notes that an August 2003 service treatment record (STR) notes the Veteran had a single elevation in his blood sugar. A January 2006 STR reflects a glucose level of 114 mg/dL and a reference indicates a normal range is between 70 and 110 mg/dL. An April 2007 VA examination reflects the Veteran was diagnosed with pre-diabetes and hyperglycemia with elevated glucose at 119. A February 2014 medical opinion from a private nurse practitioner indicates the Veteran was a patient of the clinic since August 2010 and that she reviewed the Veteran's records from 2000 to 2009 and explained that the records revealed hyperglycemia noted on venous blood draws, which are indicative of diabetes mellitus as early as 2006, although not properly diagnosed. She further explained that his stress work environment and diet likely contributed to his diagnosis over the years. A March 2017 medical opinion from a private physician's assistant (PA) explained that the Veteran was diagnosed with diabetes two years prior to his discharge from service. He explained that most recent data on diabetes research suggests that blood sugar changes can impact the body years prior to the date of diagnosis. Given this, the PA opined that his diabetes is potentially up to 50 percent service related. The only medical opinions of record are the February 2014 and March 2017 medical opinions submitted by the Veteran from his private treating clinicians. Both clinicians provided a rationale that the Veteran's in-service high glucose levels and hyperglycemia are indicative of diabetes and that blood sugar changes can impact the body years prior to the date of his diagnosis. The clinicians also treated the Veteran since 2010, and, thus, were fully informed of the Veteran's medical history and his contentions in providing the positive opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Moreover, there is no contrary medical opinion in the evidence of record. Given the only record of opinions are in favor of service connection, a remand for another VA examination could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (2017) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). Given the lack of any probative evidence against a finding that type II diabetes mellitus is related to service, the Board finds the evidence regarding the claim for service connection for this disability is in at least relative equipoise and, as such, all doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Thus, service connection for type II diabetes mellitus is warranted. ORDER Entitlement to service connection for diabetes mellitus, type II, is granted. REMAND The Veteran's claims for higher ratings for back, left knee, and bilateral carpel tunnel syndrome disabilities must be remanded for further development. The Veteran contends that the September 2011 VA examination is inadequate because it contained inaccurate facts, specifically, the examiner did not note his prior in-service left knee surgery in the examination report. The Veteran also indicated that his disabilities have worsened since that examination. With respect to the Veteran's claims for higher rating for left knee and back disabilities, the Veteran was last afforded a VA examination in September 2011. However, the Board finds that the VA examination is inadequate because the knee joint and the spine were not tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing pursuant to 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). In light of the above and the Veteran's report of worsening symptoms, the Board finds a remand is necessary to afford the Veteran additional VA examinations for these disabilities. See also Snuffer v. Gober, 10 Vet. App. 400 (1997). Regarding the Veteran's bilateral carpel tunnel syndrome, during the March 2017 Board hearing, the Veteran reported that his grip has gotten very weak with loss of strength over the years and that his primary care physician recommended that he undergo surgery for both hands, two months prior. He also reported that his fingers lock-up about three to four times a month and takes about a half an hour for his fingers to straighten up. Thus, in light of the Veteran's report of a potential worsening of this disability, a new VA examination as to this disability is also warranted. See id. As the claims are being remanded and the Veteran indicated he receives current VA treatment, VA treatment records should also be obtained on remand. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Accordingly, the remaining issues are REMANDED for the following action: 1. Obtain all updated VA treatment records. 2. Then schedule the Veteran for a VA examination, with a qualified VA physician, to determine the current severity of his back disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. The examiner should specifically report the results (in degrees) of active, passive, weight-bearing, and non-weight bearing range-of-motion testing of the Veteran's thoracolumbar spine, and, if possible, with the range of the opposite undamaged joint. The examiner should also address the 3. The Veteran should be afforded a VA orthopedic examination to determine the current severity of the service-connected left knee disability. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. The examiner should specifically report the results (in degrees) of active, passive, weight-bearing, and non-weight bearing range-of-motion testing of the Veteran's knees. 4. The Veteran should be afforded a VA examination to determine the current severity of the service-connected bilateral carpel tunnel syndrome. The claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated studies should be performed. All pertinent pathology should be noted in the evaluation report in accordance with the current disability benefits questionnaire. 5. After the above development has been completed and any additional development deemed appropriate, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs