Citation Nr: 1802884 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 07-07 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a right foot/ankle disability, to include as secondary to diabetes mellitus, type II, or as secondary to residuals of a cerebral vascular accident with major vascular neurocognitive disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a cerebral vascular accident, to include a major vascular neurocognitive disorder prior to April 28, 2009, and in excess of 50 percent beginning April 28, 2009, and prior to February 28, 2014 (already rated as 100 percent thereafter). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Gregory Keenum, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2007, August 2008, and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In July 2009, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The competent and probative evidence of record does not demonstrate that any right foot/ankle disability was caused by the Veteran's service-connected diabetes mellitus, type II, or residuals of a cerebral vascular accident with major neurocognitive disorder. 2. The competent and probative evidence of record does not demonstrate that any right foot/ankle disability was aggravated by the Veteran's service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection a right foot/ankle disability have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claim. Legal Criteria Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, 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. 38 C.F.R. § 3.310(b). Factual Background and Analysis The Veteran contends that he has a right foot/ankle disability, which was caused by his service-connected diabetes mellitus, type II, and/or his service-connected residuals of a cerebral vascular accident. Specifically, he has asserted that because of his January 2006 cerebral vascular accident and/or complications due to his diabetes, he became weak and fell from a ladder in April 2006, resulting in a right ankle fracture, which ultimately required surgery. He further asserts that his diabetes aggravated his right foot/ankle disability, causing the wound to not heal properly resulting in chronic edema and pain in his ankle. At his July 2009 hearing before the Board, when asked what was wrong with his right foot, the Veteran indicated he had been "suffering and [did not] understand it" but that his private physician suggested many of his problems are due to his diabetes. Following his April 2006 fall, the Veteran was treated at a private medical facility; however, he has failed to provide VA with the records for his emergency medical treatment immediately after the reported fall and has also failed to provide a medical authorization to allow VA to attempt to obtain these records on his behalf. The Veteran underwent surgery on his ankle and he experienced discoloration and itching at the site of the right ankle, diagnosed as traumatically induced lichen simplex chronicus. In a July 2017 opinion, a VA physician was unable to determine without resorting to speculation whether the Veteran's right foot/ankle fracture was caused by his diabetes mellitus, type II, or his service-connected residuals of a cerebral vascular accident. The rationale for the physician's inability to provide an opinion was that the medical records related to the actual fall were not of record. Although medical records which are associated with the evidence of record demonstrate that the Veteran had been treated for hypoglycemia in the past, there are no records from the actual date of the fall which reflect that the Veteran's glucose level was low. Moreover, neurology notes following his cerebral vascular accident reflect that symptoms were gradually improving and that he only felt slightly off balance, but was not functionally impaired and had returned to work. Moreover, the fact that the Veteran climbed a ladder to trim a tree implied excellent functional capacity for him to attempt such a task. At his interview, he stated he climbed a ladder to trim a limb off his neighbor's tree that he felt was too close to the house; he was holding a saw and when he reached out to trim the limb, he lost his footing and fell off the ladder. The July 2017 VA physician also determined that the Veteran's right foot/ankle disability was not aggravated by his diabetes. The VA physician acknowledged a private December 2007 orthopedic note which reflects that diabetes was likely contributing to some of the Veteran's chronic edema and discomfort, but that a lot of this was mechanical in nature due to the lack of range of motion from the previous fracture to his hindfoot. The VA physician found that the Veteran's right foot/ankle disability was not aggravated by his diabetes because the type of aggravation alleged only occurs with diabetic neuropathy, proteinuria, and hypoalbuminemia, none of which are reflected in the Veteran's medical records. Additionally, there was evidence demonstrating infection. For those reasons, the VA physician disagreed with the December 2007 private physician's assessment that the Veteran's diabetes aggravated his right foot/ankle disability. Based on the foregoing, the Board finds that service connection for a right foot/ankle disability is not warranted because the evidence does not demonstrate that his right foot/ankle disability was caused by residuals of a cerebral vascular accident and/or diabetes or that it was aggravated by his diabetes. See 38 C.F.R. § 3.310. The Board recognizes that the December 2007 private orthopedic doctor indicated it was likely that the Veteran's edema and discomfort in his right foot/ankle was due to his diabetes; however, the Board affords more probative weight to the July 2017 VA physician's opinion because it was based on a thorough review of the record, with a complete understanding of the manifestations of the Veteran's diabetes. There is no evidence that the December 2007 private orthopedic doctor was privy to the severity (or lack thereof) of the Veteran's diabetic condition and the July 2017 VA physician noted that there were no manifestations of the Veteran's diabetes present which would cause or aggravate his right foot/ankle disability. Moreover, the July 2017 opinion contains a rationale, which the December 2007 opinion is lacking. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary medical opinions"). The Board has the authority to assign weight and probative value to evidence, and here, finds that the July 2017 VA opinion is more probative. The Board also acknowledges the Veteran's statements that he believes his right foot/ankle disability was caused or aggravated by his diabetes and residuals of a cerebral vascular accident. While the Veteran is competent to report symptoms he experiences, he has not demonstrated that he possesses the requisite medical education, training, or experience to provide opinions as to the etiology of any disability. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training. or experience to offer medical diagnoses, statements, or opinions). Based on the foregoing, the Board finds that service connection for a right foot/ankle disability is not warranted. See 38 C.F.R. § 3.310. In finding so, the Board has considered the benefit of the doubt doctrine; however, as the evidence weighs against his claim, it is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). VA's Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by letters dated August 2008 and September 2013. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has been satisfied in this case. The RO obtained the Veteran's service treatment records, VA treatment records, Social Security Administration disability records, and identified private records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Although the Veteran's Vocational Rehabilitation and Employment records were associated with the evidence of record following the most recent Supplemental Statement of the Case and have not been reviewed by the RO in the first instance, these records are not relevant to his service connection claim as the question before the Board is one of etiology; therefore, a remand for the RO to consider these records is not necessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Additionally, the Veteran has been afforded several VA examinations. The Veteran has acknowledged treatment at several private facilities and in its April 2017 remand, the RO sent the Veteran a letter requesting that he complete and return a medical authorization to allow VA to attempt to obtain these identified records. Notably, in its April 2017 remand, the Board emphasized to the Veteran and his private attorney the importance of their cooperation in helping VA obtain these records. However, in a May 2017 response from the Veteran, he indicated that he had submitted all the evidence he wished VA to consider. The Board notes that VA's duty to assist is not a one way street; if the Veteran wishes help he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Unfortunately, the Veteran's failure to provide VA with this information resulted in the inability to obtain crucial evidence which may have lent support to his claims. Based on the foregoing, the Board finds that VA satisfied its duty to assist, to the extent it was feasible. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473, 486 (2006). The Board also finds that its November 2009, September 2013, and April 2017 remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Significantly, the Veteran's claims were recently readjudicated in a September 2017 Supplemental Statement of the Case, and neither the Veteran nor his private attorney have asserted that prior remand directives were not substantially complied with. ORDER Service connection for a right foot/ankle disability is denied. REMAND Although the Board regrets the further delay, the Veteran's claims for increased ratings for residuals of a cerebral vascular accident with major neurocognitive disorder and entitlement to TDIU must be remanded. In November 2017, the Veteran's Vocational Rehabilitation and Employment records were obtained and associated with the evidence of record. These have not been reviewed by the RO in the first instance and are particularly relevant to the Veteran's claims being remanded. Specifically, these records contain, among other evidence, a November 2007 vocational evaluation and assessment (which includes the results of cognitive testing), October and December 2007 career counseling reports, and information about the Veteran's prior employment. Therefore, a remand is required for the RO to review this evidence in the first instance. 38 C.F.R. § 19.31(b) (2017). While this case is in remand status, development to obtain all outstanding VA medical records must be completed and the records must be associated with the evidence before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence before the Board. 2. Then, the Veteran's claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. The Veteran 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs