Citation Nr: 1803055 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 14-11 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling prior to June 9, 2015, and as 70 percent disabling from June 9, 2015. 2. Entitlement to an increased rating for diabetes mellitus, type II, currently evaluated as 20 percent disabling prior to June 20, 2012, and as 10 percent disabling since June 20, 2012. 3. Entitlement to service connection for erectile dysfunction. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for vision loss. 6. Entitlement to service connection for allergic rhinitis. 7. Entitlement to service connection for residuals of a herniorrhaphy. 8. Entitlement to service connection for diverticulosis. 9. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to January 1972. These matters comes before the Board of Veterans' Appeals (Board) from July 2012, May 2015 and December 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. The Veteran testified via a Board videoconference hearing before the undersigned Veterans Law Judge in February 2017. A transcript of that hearing has been associated with the record on appeal. Prior to certification of the appeal to the Board, the Veteran submitted a signed VA Form 21-22a, dated and received in October 2012, granting a power of attorney (POA) in favor of the representative as listed on the title page of this decision. The Board notes that the Veteran's appeal was certified to the Board on March 28, 2016. In December 2017, a VA Form 21-22a granting a POA in favor of another representative was associated with the record. Under 38 C.F.R. § 20.1304, an appellant is granted a period of 90 days following the mailing of notice that an appeal has been certified to the Board and the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board, whichever comes first, during which he may submit a request for a change in representation. 38 C.F.R. § 20.1304 (a) (2017). The Board cannot accept a request for a change in representation after this 90 day period unless good cause is shown in a written motion to account for the delay in the submission of the request. 38 C.F.R. § 20.1304 (b) (2015). In the present case, the Veteran has not submitted a motion to the Board requesting a change in his representative nor is there any explanation for the change in representation at this late date. Accordingly, the Board does not find good cause for the Veteran changing his representative at such a late date. See e.g. Perez v. Shinseki, 25 Vet. App. 190 (2011) (Board did not err in denying claimant's request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). Consequently, the Board has not accepted the appointment of the new representative for purposes of the current appeal. The request for a change in representation is referred to the RO upon completion of the Board's action on the pending appeal without action by the Board concerning the request. The issues of entitlement to higher disability ratings for PTSD and diabetes mellitus, entitlement to service connection for erectile dysfunction, hypertension, and vision loss, as well as entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At his February 2017 Board videoconference hearing, prior to a decision being promulgated by the Board on the Veteran's claim for entitlement to service connection for allergic rhinitis, the Veteran indicated his desire to withdraw that issue from the appeal. 2. The most probative, competent evidence is against a finding that residuals of a herniorrhaphy are related to active duty service. 3. The most probative, competent evidence is against a finding that diverticulosis is related to active duty service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for allergic rhinitis have been met, and the issue is dismissed. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for residuals of a herniorrhaphy have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.305, 3.307, 3.309 (2017). 3. The criteria for service connection for diverticulosis have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.305, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duty to Notify and the Duty to Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the issues decided herein. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A May 2012 letter satisfied the duty to notify provisions, to include notification of the regulations pertinent to the establishment of an effective date and disability rating. The Veteran's service treatment records, post-service treatment records, and lay evidence have been obtained and associated with the record. 38 U.S.C.A. § 5103(A); 38 C.F.R. § 3.159. The Veteran was provided VA examinations in June 2012 and June 2015. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The VA examiners reviewed the service treatment records, private medical treatment records and lay statements and performed physical examinations. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. 303. As such, the Board finds the examinations and opinions to be sufficient and adequate for adjudication purposes. Additionally, the Veteran testified at a February 2017 Board videoconference hearing before the undersigned Veteran's Law Judge (VLJ). The Veteran was assisted at the hearing by an attorney. The attorney and the VLJ asked questions to ascertain the current severity of the Veteran's service-connected disabilities and the etiologies of the disabilities for which he sought entitlement to service connection. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection and increased ratings. Information was solicited as to the existence of any potential outstanding evidence. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Withdrawn Claim At his February 2017 Board videoconference hearing, the Veteran indicated that he did not want to continue his appeal for service connection for allergic rhinitis. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. See 38 U.S.C.A. § 7105(d). Accordingly, further action by the Board concerning the claim of entitlement to service connection for allergic rhinitis is not warranted, and the appeal of this claim is dismissed. Id. III. Service Connection The Veteran seeks entitlement to service connection for residuals of a herniorrhaphy, and diverticulosis. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical, or in certain circumstances, lay evidence of 1) a current disability; 2) an in-service incurrence or aggravation of a disease or injury; and 3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). The Veteran's DD Form 214 confirms that he served in Vietnam with the Army during the Vietnam War era. The Veteran's exposure to herbicide agents is presumed given his active military service in Vietnam. 38 U.S.C.A. § 1116(f). However, residuals of a herniorrhaphy, and diverticulosis, are not diseases found to have a scientific relationship such that they can be presumed to have been caused by the Veteran's exposure to in-service herbicide agents. 38 C.F.R. § 3.309(e); 72 Fed. Reg. 32,395-32,407. Thus, the Veteran is not entitled to the regulatory presumption of service connection on a direct-incurrence basis for these disorders. 38 U.S.C.A. § 1116(f ); 38 C.F.R. § 3.309(e). Nonetheless, even if the Veteran is not entitled to a regulatory presumption of service connection on a direct-incurrence basis, the claims must still be reviewed to determine if service connection can be established on a nonpresumptive direct-incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that a veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation). Here, the Veteran asserts that he has residuals of a herniorrhaphy, and diverticulosis, that were either incurred in or a result of his period of active duty service. Specifically, he testified that the lining of his stomach interior was weakened in service as a result of carrying heavy backpacks, which he believes caused his residuals of a herniorrhaphy. With respect to his claim of entitlement to service connection for diverticulosis, he testified that the condition first manifested in service because he had a bad cough and had difficulty keeping food in his stomach. However, a review of the Veteran's service treatment records reveals no complaints or treatment for symptomatology related to residuals of a herniorrhaphy or diverticulosis. Significantly, his December 1971 Report of Medical Examination at separation indicated that his abdomen, viscera, and genitourinary system were all within normal limits, and that the Veteran indicated at that time that he was in good health. As such, there is no documented evidence of chronic symptomatology related to residuals of a herniorrhaphy and/or diverticulosis during the Veteran's period of active duty service. The Veteran was provided VA examinations relevant to these claims in June 2012. With respect to the claim of entitlement to service connection for residuals of a herniorrhaphy, the examiner confirmed that the Veteran was diagnosed as having a ventral hernia in 2003, many years following his separation from service, and that he had an umbilical hernia repaired that same year. However, the examiner opined that the Veteran's umbilical hernia, status post uncomplicated surgical repair without recurrence or residual symptoms, was not incurred in or caused by military service, nor was it caused by exposure to herbicides or other deployment hazards or aggravated by other service-connected conditions alone or in the aggregate. With respect to the claim of entitlement to service connection for diverticulosis, the examiner opined that the Veteran did not suffer from diverticulosis and had never experienced diverticulitis; rather, he diagnosed the Veteran as having non-pathologic diverticula which was more than likely the result of aging. The examiner further opined that the benign colonic diverticula were not incurred in or caused by military service or exposure to herbicides, and had not been aggravated by other service-connected conditions. The Board affords significant probative weight to the June 2012 VA examiner's opinions as they were inclusive of all of the evidence and supported by sufficient rationale. The VA examiner reviewed the Veteran's service treatment records, post-service treatment records, and lay statements, and cited to service treatment records and the Veteran's medical history in support of the opinions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning). The Board acknowledges the Veteran's statements that he has residuals of a herniorrhaphy, and diverticulosis, which were incurred in and/or otherwise related to service. The Board also acknowledges that the Veteran is competent to describe his symptoms. Buchanan, 451 F.3d 1331. In certain unique instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. However, the evidence here does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the medical causation of residuals of a herniorrhaphy and/or diverticulosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Here, the Board finds that any possible relationship between these disabilities and an in-service event or injury is not something which a layman is competent to provide an opinion. See Barr, 21 Vet. App. at 307 (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). As such, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value. In addition, a veteran's own conclusion stated in support of his claim that his present disability is related to service is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159; see also Grivois v. Brown, 6 Vet. App. 136 (1994). Thus, a medical opinion is needed to connect one medical condition to service. In this case, the competent, probative medical evidence provides a negative opinion concerning a nexus between residuals of a herniorrhaphy or diverticulosis and active duty service. As the Veteran conceded at his February 2017 Board videoconference hearing, although he believed that these disorders were related to his period of active duty service, no physician had ever suggested a link between these disorders and service. Based on the foregoing, the Board finds the preponderance of the evidence is against a grant of service connection for residuals of herniorrhaphy and diverticulosis. In reaching the above conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, the benefit of the doubt doctrine is not applicable in the instant appeal, and service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. at 55-56 (1990). ORDER The appeal of entitlement to service connection for allergic rhinitis is dismissed. Service connection for residuals status post herniorrhaphy is denied. Service connection for diverticulosis is denied. REMAND The Veteran also seeks entitlement to increased ratings for PTSD and diabetes mellitus, entitlement to service connection for erectile dysfunction, hypertension, and vision loss, as well as entitlement to a TDIU. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to the claims of entitlement to higher disability ratings for PTSD and diabetes mellitus, the Veteran was last provided with VA examinations relevant to these service-connected disabilities in June 2015, over two years ago. The testimony given by the Veteran at his February 2017 Board videoconference hearing as well as the August 2017 "Employability Evaluation" submitted on behalf of the Veteran by a private Certified Vocational Rehabilitation Counselor hired by his attorney, suggest that the symptomatology related to his service-connected PTSD and diabetes has increased in severity since the most recent VA examinations. Given this evidence of worsening of symptomatology, the Board finds a remand for contemporaneous VA examinations is warranted. 38 C.F.R. § 3.159(c)(4)(i) (2015); see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). With respect to the claims of entitlement to service connection for erectile dysfunction, hypertension, and vision loss, as well as entitlement to a TDIU, the outcome of these claims is in part dependent on the outcome of the increased rating claims on appeal. Specifically, the Veteran has asserted that his vision loss, erectile dysfunction, and hypertension were either caused or aggravated by his service-connected diabetes; as such, the nature and severity of his diabetes symptoms are pertinent to the adjudication of these claims. Adjudication of the TDIU claim is in part dependent on the outcome of both increased rating claims on appeal. Therefore, the claims of entitlement to service connection for erectile dysfunction, hypertension, and vision loss, as well as entitlement to a TDIU, are inextricably intertwined with the increased rating claims and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a VA psychiatric examination to assess the current nature and severity of his service-connected PTSD. The claims file must be made available to the examiner, and the examination report must reflect that such review occurred. All tests and studies deemed necessary must be performed. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. The examiner should also outline all functional impairment due to the Veteran's service-connected PTSD, to include as would affect his ability to engage in specific occupational activities. 2. Provide the Veteran with a VA diabetes examination to determine the current nature and severity of his service-connected diabetes and any complications attributable to his diabetes, to include any vision loss, erectile dysfunction, and hypertension. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. Any necessary diagnostic testing must be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner should also outline all functional impairment due to the Veteran's service-connected diabetes, to include as would affect his ability to engage in specific occupational activities. 3. Notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without a showing of good cause may include denial of one or more of his claims. See 38 C.F.R. §§ 3.158, 3.655 (2017). 4. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit remains denied, then a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs