Citation Nr: 1802907 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 12-13 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a nerve disability of the upper and lower extremities. 2. Entitlement to service connection for a skin disability. 3. Entitlement to service connection for a rectal disability. 4. Entitlement to service connection for blurry vision. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for stomach problems/ulcers. 7. Entitlement to service connection for gout. 8. Entitlement to service connection for loss of equilibrium. 9. Entitlement to service connection for residuals of a stroke. 10. Entitlement to an increased rating for diabetes mellitus, currently rated as 20 percent disabling. 11. Entitlement to an increased rate of special monthly compensation (SMC). 12. Entitlement to specially adapted automotive equipment. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to May 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2010 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this appeal in October 2014 and in January 2017. In August 2017, the Veteran withdrew his request for a hearing. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The issues of entitlement to service connection for a nerve disability, hypertension, and blurry vision and for an increased SMC and specially adapted automotive equipment are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent, probative, and persuasive evidence of record is against a finding that the Veteran's skin disability, rectal disability, stomach problems/ulcers, gout, loss of equilibrium, and residuals of a stroke were caused or aggravated by his active service or by a service-connected disability. 2. Throughout the pendency of the appeal, the Veteran's diabetes mellitus has been manifested by the need for daily oral hypoglycemic agents dietary restrictions. However, the evidence does not demonstrate regulation of physical activity as defined by VA regulations. There have not been episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. CONCLUSIONS OF LAW 1. The criteria for service connection for a skin disability have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 2. The criteria for service connection for a rectal disability have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 3. The criteria for service connection for stomach problems/ulcers have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 4. The criteria for service connection for gout have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 5. The criteria for service connection for loss of equilibrium have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 6. The criteria for service connection for the residuals of a stroke have not been met. 38 U.S.C. § 1101, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.310 (2017). 7. The criteria for a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.159, 3.321, 4.119, Diagnostic Code (DC) 7913 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also 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). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304 . See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Skin Disability The Veteran contends that he suffers from cysts and blackheads related to his service in Vietnam. The Veteran has already been awarded service connection for tinea versicolor and tinea pedis. In this case, the Board finds that service connection for a skin disability, other than tinea versicolor and tinea pedis, is not warranted. In so finding, the Board notes that there are various diagnoses and treatment for skin conditions in service, to include in August 1968 when the Veteran was suffering from a rash on his abdomen, face, and back, and was given Benadryl and Zinc Oxide, when he was treated for a boil under his eyelid in July 1969, pimples on his scrotum in January 1970, and venereal warts in July 1971. However, in February 2010, a VA examiner reviewed the claims file and completed a physical examination of the Veteran, but determined that the Veteran's current skin condition was not the same as the ones that were treated in service. The Veteran's current skin condition, which was described as clinically suspected Liveda Reticularis, a vascular disorder, was not related to the in-service skin problems that were treated accordingly. The Board finds that this opinion is competent and probative evidence that weighs heavily against the Veteran's claim, especially in light of the later VA examination that also found that the Veteran did not suffer from a skin condition that could be related to service. In that regard, on October 2016 VA examination, no cysts or other skin condition was shown on examination. On January 2016 VA Agent Orange examination, the Veteran was noted to have a cyst on his hand related to soft tissue that had been removed. He reported that he often has blotchy skin on his arms and back since service. However, a nexus to herbicide exposure was not provided at the time. The Board notes that the Veteran has not been diagnosed with a disability that is considered to be a presumptive herbicide disability. See 38 C.F.R. § 3.309. While the Veteran has reported that he has suffered from itchy and blotchy skin since service, the Board finds that the 2010 VA examination opinion weighs against the Veteran's claim that his current disability was caused or aggravated by service. While the Veteran is competent to report the sensation of itchy skin and the continuity of those symptoms, he is not competent to diagnose a chronic skin disability. The 2010 VA examiner thoroughly reviewed the service treatment records and, when taking into consideration the Veteran's skin pathology and timeline, determined that the Veteran's current skin disability was not related to service and was not the same skin disability as was shown in service. That opinion is consistent with the later October 2016 opinion, which did not find a skin disability that could be related to service. Accordingly, when taking into consideration the competent and probative medical opinions of record, the Board finds that service connection for a skin disability must be denied. Rectal Disability The Veteran contends that he suffers from a rectal disability that began in service. The service treatment records reflect that he was treated for venereal warts while in service. However, on April 2012 VA examination, following physical examination of the Veteran, the VA examiner determined that there was no evidence of venereal warts. There was some excessive redundant tissue around the anus that was likely related to pervious hemorrhoids that he suffered from in 1999 and that were surgically removed at that time. In this case, the Board finds that service connection for a rectal disability is not warranted. There is no evidence of any residual symptom stemming from the in-service treatment for venereal warts. Nor is there evidence in service of hemorrhoids or treatment for such. The Veteran has not provided any other contentions as to a relationship between a current rectal disability and service. Accordingly, as there is no nexus to relate a current rectal disability to service, the Board finds that the preponderance of the evidence is against his claim, and it therefore must be denied. Gout, Stomach Problems, Ulcers, Stroke, Loss of Equilibrium The Veteran contends that his current or previous gout, stomach problems, ulcers, stroke, and loss of equilibrium were caused or aggravated by his service, specifically exposure to herbicides while in service. However, the Board finds that service connection for these conditions is not warranted. First, the service treatment records are negative for complaints, diagnosis, or treatment for gout, stomach problems, ulcers, or a stroke. The Veteran has not stated that he suffered from these disabilities in service or for many years following service separation. While ulcers are included as a presumptive disability under 38 C.F.R. § 3.309, there is no indication that the Veteran suffered from ulcers within one year following service separation. Moreover, none of these disabilities have been presumptively related to herbicide exposure during the Vietnam War under 38 C.F.R. § 3.309. The record reflects that the Veteran suffered from a stroke in 2010, many years following service separation. Again, absent contentions as to how these conditions are otherwise related to service, support for the claim that they are related to herbicide exposure, or statements or evidence that these disabilities began in service or shortly following service, the Board finds that the preponderance of the evidence is against the Veteran's claims, and therefore the claims must be denied. In addition, the evidence does not reflect or suggest that these disabilities were either caused or aggravated by the Veteran's service-connected disabilities. With regard to the Veteran's loss of equilibrium, the service treatment records document that in November 1968, the Veteran reported experiencing an episode of syncope, without a complete loss of equilibrium. There had been no other episodes in service. Post-service records reflect that in September 2010, the Veteran reported memory loss and loss of equilibrium, however, no underlying diagnosis was provided. The Veteran has not provided statements to support his claim that he has a current disability manifested by loss of equilibrium related to his service. While the service records document a syncopal episode, there is no evidence of a diagnosis of an underlying disability in service, a continuity of symptoms for over 40 years following service separation, or a current diagnosis to relate to service. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Given the lack of diagnosis of a disability manifested by loss of equilibrium to relate to service, the Board finds that service connection must be denied. Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's diabetes mellitus with erectile dysfunction has been rated 20 percent disabling under Diagnostic Code 7913, which provides for a 20 percent rating where the diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Turning to the evidence of record, on October 2016 VA examination, it was specifically found that the Veteran's diabetes mellitus did not result in regulation of activities. Moreover, such is not shown in the VA treatment records. The Board notes that the Veteran reports that he is greatly limited in his ability to walk due to his diabetes. However, this evidence does not support a finding that the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities due to his diabetes mellitus. In that regard, at various instances in the treatment records, such as in October 2015, the Veteran's diabetes mellitus was noted to be under good control. See 61 Fed. Reg. 20440, 20446 (May 7, 1996) (defining regulation of activities as used by VA in DC 7913). Accordingly, as the criteria for a higher rating for diabetes had not been met, the claim must be denied. The Board finds no indication that a separate compensable rating for erectile dysfunction would be warranted in this instance. ORDER Service connection for a skin disability is denied. Service connection for a rectal disability is denied. Service connection for gout is denied. Service connection for stomach problems/ulcers is denied. Service connection for a stroke is denied. Service connection for loss of equilibrium is denied. A rating in excess of 20 percent for diabetes mellitus is denied. REMAND With regard to the Veteran's claim for service connection for a "nerve disability," the record reflects that on October 2016 VA examination, and as shown in the treatment records, the Veteran has been diagnosed with peripheral neuropathy of the upper and lower extremities. In January 2016, the Veteran's private physician stated that his peripheral neuropathy was due to exposure to Agent Orange while in service. In another statement, his physician stated that his peripheral neuropathy was related to his service-connected diabetes mellitus. On April 2012 VA examination, the Veteran was also diagnosed with peripheral vascular disease, with likely peripheral neuropathy. The record reflects that the Veteran suffered from a stroke in 2010, and has since suffered from gait ataxia and weakness in the lower extremities. Because the etiology of the Veteran's neurological disability is unclear, and such is a necessary finding in order to determine to correct effective date if the claim were to be granted, the Board finds that a VA examination and opinion is necessary. The Veteran contends that he suffers from blurry vision secondary to his diabetes mellitus. While in July 2016, it was found that the Veteran did not suffer from diabetic retinopathy, he was diagnosed with cataracts. It is unclear whether his diabetes mellitus caused or aggravated his cataracts. Thus, a VA opinion is necessary. The Veteran contends that his hypertension is related to his exposure to herbicides in service. Although hypertension is not a disability presumptively associated with herbicide exposure (see 38 C.F.R. § 3.309 (e)), the National Academy of Sciences (NAS) has placed hypertension in the category of "limited or suggestive evidence of an association" with exposure to herbicides. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926 (Aug. 10, 2012). On remand, a VA opinion as to the etiology of the Veteran's hypertension is necessary. The Veteran has been granted SMC for both loss of use of creative organ and based upon housebound status, effective January 12, 2016. Because the resolution of his service connection claims might impact this effective date, the claim for increased SMC must also be remanded. In that regard, the Veteran has also stated his disagreement with the effective date assigned for SMC, and that issue has not yet been adjudicated by the RO. In addition, as the benefit of adaptive automotive equipment is based on loss of use of the lower extremities, the issue of entitlement to service connection for peripheral neuropathy may impact upon the outcome of this issue. The Board, therefore, will defer adjudication of this issue as well. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the etiology of his neurological disability affecting the extremities. The examiner should review the claims file. A complete rationale should accompany the opinion reached. The examiner is asked to provide the following: a) Diagnose (and evaluate the current severity of) the Veteran's neurological disability, to include any peripheral neuropathy or peripheral vascular disease. b) Does the Veteran suffer from early onset peripheral neuropathy, which is peripheral neuropathy that occurred within one year of the Veteran's service in the Republic of Vietnam, where he was presumed to have been exposed to Agent Orange? c) For each diagnosed neurological disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that such disability was incurred or aggravated as a result of his military service, or was caused or aggravated by the Veteran's service-connected diabetes mellitus. If peripheral neuropathy is diagnosed but it is not found to be early onset, the examiner should determine whether it is at least as likely as not that any such disability was actually related to the Veteran's presumed Agent Orange exposure. The examiner is informed that aggravation here is defined as any increase in disability. If the Veteran's diabetes mellitus aggravated a neurological disability in the extremities, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 2. Schedule a VA examination to assess the etiology of the Veteran's current eye disabilities. The examiner should review the claims file. A complete rationale should accompany the opinion reached. The examiner is asked to provide the following: a) Diagnose (and evaluate the current severity of) all eye disabilities. b) For each diagnosed eye disability, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that such disability was caused or aggravated by the Veteran's service-connected diabetes mellitus. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 3. Schedule a VA examination to assess the etiology of the Veteran's hypertension. The examiner should review the claims file. A complete rationale should accompany the opinion reached. The examiner is asked to provide the following: The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that hypertension was incurred or aggravated as a result of his military service, to include as due to herbicide exposure, or was caused or aggravated by the Veteran's service-connected diabetes mellitus. The examiner must specifically reference, in the opinion rationale, the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. The examiner is advised that, although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran's hypertension is due to such exposure. A full rationale is to be provided for all stated medical opinions. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is informed that aggravation here is defined as any increase in disability. If the Veteran's diabetes mellitus aggravated a neurological disability in the extremities, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. 4. Thereafter, afford the Veteran a proper examination regarding increased aid and attendance and automobile equipment. The examiner should render an opinion as to whether it is at least as likely as not the Veteran's service connected disabilities manifest symptomology of loss of use of the Veteran's lower extremities and/or feet. 5. Thereafter, readjudicate the Veteran's claims, to include the effective date of the award of SMC. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs