Citation Nr: 1751653 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-02 850 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for diabetic retinopathy, to include as due to service-connected diabetes mellitus type II (herein diabetes). 2. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to December 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho (though jurisdiction lies with the Phoenix, Arizona RO). The Veteran's representative testified at a November 2016 Board hearing before the undersigned Veterans Law Judge (VLJ) in Phoenix, Arizona. A transcript of the hearing is of record. The Veteran had previously perfected an appeal in regards to entitlement to an increased disability rating for diabetes and entitlement to service connection for kidney failure and bilateral upper and lower extremity peripheral neuropathy, but withdrew his appeal in regards to these claims in November 2017. See November 2017 Veteran Statement and November 2017 Board Hearing Transcript. The Board notes that the Veteran's appeal was transferred to the Board in March 2017. See March 2017 Letter. 38 C.F.R. § 20.204(b)(3) (2017) states that "[u]ntil the appeal is transferred to the Board, an appeal withdrawal is effective when received by the agency of original jurisdiction [AOJ]." As such, the referenced appeals were withdrawn effective in November 2017 when the withdrawal was received by the AOJ and further action by the Board is not required. The Veteran's withdrawal did not mention the previously perfected appeals for entitlement to service connection for diabetic retinopathy or hypertension and accordingly those claims remain on appeal. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran does not have diabetic retinopathy. CONCLUSION OF LAW Diabetic retinopathy was not incurred in or aggravated by the Veteran's active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Diabetic Retinopathy Initially, subsequent to the December 2013 Statement of the Case (SOC) additional documents were associated with the Veteran's claims file, to include VA examination reports for separate disabilities not on appeal, without a waiver of review by the AOJ. The additional VA examination reports obtained by VA do not relate to or have a bearing on this claim and are therefore not pertinent and the Board can accordingly proceed with a decision on this claim. See 38 C.F.R. §§ 19.31, 20.1304(c) (2017). In any event, the competent evidence of record did not indicate that the Veteran had a diagnosis of diabetes retinopathy during the appeal period and as such, entitlement to service connection must be denied. In this regard, the Board finds that the most probative evidence of record is a May 2011 VA examination report that was completed by an optometrist. The examination report noted an impression of "diabetes without retinopathy." The examiner also noted diagnoses of early cataracts and refractive error, but stated that such were not related to diabetes. No other competent evidence of record indicated a diagnosis of diabetic retinopathy during the appeal period. The Veteran (and his representative) did not appear to provide any specific argument or contention related to this issue. To the extent that the Veteran's submission of a claim for entitlement to service connection for diabetic retinopathy and his representative's submission of a Notice of Disagreement as to this issue are contentions of a diagnosis of diabetic retinopathy, the Veteran (and his representative) is not competent to diagnose diabetic retinopathy, as this is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, the Veteran has not stated that a competent medical professional diagnosed diabetic retinopathy. In other words, there are no Jandreau type exceptions. Overall, the Board finds the May 2011 VA examination report, provided by an optometrist, to be of significantly more probative value than the Veteran's (and his representative's) lay statements as to the issue of whether he had diabetic retinopathy. Whether the issue is addressed as direct service connection, presumptive service connection, secondary service connection or as a subsequent manifestation of an already service connected disease, there must be competent evidence that the disability exists. In conclusion, the threshold requirement for entitlement to service connection to be granted is competent evidence of the current existence of the claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Without competent evidence of diabetic retinopathy during the appeal period, the Veteran's claim cannot succeed. The Board finds that the evidence did not indicate that the Veteran had diabetic retinopathy during the appeal period. As such, the Board concludes that diabetic retinopathy was not incurred in or aggravated by the Veteran's active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury and to this extent the Veteran's claim therefore must be denied. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). Finally, as applicable to this issue, neither the Veteran nor his representative has raised issues with respect to VA's duty to notify or assist or presented other procedural arguments. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). ORDER Entitlement to service connection for diabetic retinopathy is denied. REMAND The Veteran seeks entitlement to service connection for hypertension and various evidence of record indicated that he has been diagnosed with such. The Veteran served in the Republic of Vietnam during the Vietnam Era and is therefore presumed to have been exposed to a herbicide agent (e.g., Agent Orange). See 38 U.S.C.A. § 1116(f) (West 2014); 38 C.F.R. § 3.307(a)(6)(iii) (2017); DD 214. On the January 2014 VA Form 9 (Appeal to [the Board]), the Veteran stated that "I feel the cardiac issues...are a result of Agent Orange Exposure." While hypertension is not recognized as a presumptive condition due to herbicide agent exposure, the National Academy of Sciences has indicated that there is limited or suggestive evidence of an association between hypertension and herbicide agent exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014); see also 38 C.F.R. § 3.309 (2017). In light of the evidence of a current diagnosis of hypertension and the National Academy of Sciences' findings suggesting that there may be an association between hypertension and herbicide agent exposure, remand is required for an opinion addressing direct service connection (which has not previously been obtained), as outlined further in the remand directives below. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Veteran reported on an April 2007 VA Form 21-526 (Veteran's Application for Compensation and/or Pension) that he was in the process of claiming Social Security Administration (SSA) disability benefits. It is not clear whether such benefits were related to the hypertension claim on appeal (the April 2007 VA Form 21-526 did not contain a claim for hypertension). As such the Board cannot conclude, based upon the current record, that there are any relevant, outstanding records in the custody of the SSA. Thus, while on remand, the Veteran must be contacted to clarify whether any SSA disability benefits claims were related to the hypertension claim on appeal. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. Accordingly, the case is REMANDED for the following action: 1. If the Veteran has or can obtain material evidence, he should be requested to submit such evidence. If he identifies material VA records, the AOJ should attempt to obtain such evidence. 2. Contact the Veteran and ask him whether any SSA disability benefits claims were related to the hypertension claim on appeal. If the Veteran responds affirmatively, attempt must be undertaken to obtain such records. 3. Obtain a VA opinion with respect to the Veteran's hypertension claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension had its onset during active service or is related to any in-service disease, event, or injury, to include presumed herbicide agent exposure. The medical professional's attention is invited to the National Academy of Sciences report that has indicated that there is limited or suggestive evidence of an association between hypertension and herbicide agent exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308 (Apr. 11, 2014). The medical professional is informed that the mere fact that a VA presumption has not been established for a particular disorder at issue (i.e., hypertension) is not dispositive of the issue of nexus and consideration must still be given to the exposure. For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. 4. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefit sought remains denied, furnish to the Veteran and his representative a Supplemental Statement of the Case. 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 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs