Citation Nr: 1803104 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-39 593 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus, to include a separate compensable rating for diabetic retinopathy. 2. Entitlement to service connection for a disability manifested by irregular and painful menses. 3. Entitlement to service connection for anemia, to include as secondary to a disability manifested by irregular and painful menses. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision of the Cleveland, Ohio, Regional Office (RO), which denied, in pertinent part, service connection for a disorder characterized as irregular menstrual periods. In April 2007, the RO granted service connection for diabetic retinopathy, as secondary to the Veteran's service-connected type II diabetes; denied a separate compensable rating for the vision disorder, and denied service connection for anemia. In April 2016 and August 2014, the Board remanded the present claims on appeal for further development. Previous claims within this appeal stream were either hitherto decided by the Board or granted in full by the RO for reasons and bases stated within corresponding decisions of record. FINDINGS OF FACT 1. The Veteran's diabetes mellitus II requires no more than an oral hypoglycemic agent and a restricted diet; and the Veteran's diabetic retinopathy does not impair corrected visual acuity to a level beyond 20/40, or cause incapacitating episodes. 2. The Veteran does not suffer from a disability manifested by irregular and painful menses that was incurred in or otherwise related to service. 3. The Veteran does not suffer from anemia that was incurred in, manifested within one year of, or is otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for type II diabetes mellitus, to include a separate compensable rating for diabetic retinopathy, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.21, 4.79, 4.119, Diagnostic Code (DC) 6006, 7913, (2017). 2. The criteria for service connection for a disability manifested by irregular and painful menses have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303 (2017). 3. The criteria for service connection for anemia have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA provided required notice in May 2006 and February 2007 VCAA letters. VA obtained updated VA medical records, identified private treatment records, and lay statements. VA arranged for updated February and May 2017 examinations in relation to the claims on appeal. Consequently, VA satisfied its duties to notify and assist, and adjudication of this appeal does not prejudice the Veteran. II. Increased Rating The adverse impact of a veteran's service-connected disability on his or her ability to function under the ordinary conditions of daily life, including employment, as compared with applicable Schedule for Rating Disabilities criteria, determines the veteran's disability rating. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA shall assign the higher of two applicable ratings if the disability more nearly approximates its criteria; otherwise, the lower rating shall be assigned. See 38 C.F.R. § 4.7. For non-initial increased rating cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). VA shall stage ratings when a service-connected disability exhibits symptoms warranting different ratings for distinct periods. Hart v. Mansfield, 21 Vet. App. 505 (2007). After consideration of all procurable and assembled data, any reasonable doubt regarding service origin, the degree of disability, or any other point, shall be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Veteran is service connected for diabetes mellitus II at a 20 percent rate. Under DC 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires 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 when the diabetes requires 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. Note 2 to DC 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under DC 7913. The Veteran has a noncompensable evaluation for diabetic retinopathy, which is incorporated into the Veteran's current 20 percent evaluation for diabetes mellitus, type II. The Veteran has separate compensable evaluations of 20 percent for left upper extremity peripheral neuropathy, 20 percent for right upper extremity peripheral neuropathy, 20 percent for left lower extremity peripheral neuropathy, and 20 percent for right lower extremity peripheral neuropathy. The Veteran has not perfected an appeal of any increased rating claim concerning the separately compensated diabetic peripheral neuropathies. VA arranged a May 2017 examination to determine the current nature and severity of the Veteran's diabetes mellitus. According to the May 2017 examination report, the Veteran does not require regulation of activities as part of medical management of diabetes mellitus, as required by the schedular criteria for 40, 60, and 100 percent evaluations. The examination does not reflect any sort of insulin treatment as required by evaluations greater than 20 percent. The report shows frequency of visits to care provider for ketoacidosis and hypoglycemia episodes to be less than 2 times per month. No such episodes have required any hospitalization within the past 12 months. Additionally, the report shows no unintentional weight or strength loss due to diabetes mellitus. Consequently, the May 2017 VA examination report shows that the Veteran's diabetes mellitus does not present any circumstances warranting an evaluation greater than 20 percent. A May 2016 VA examination report similarly reflects the Veteran's diabetes does not require insulin and regulation of activities, and that the Veteran did not have ketoacidosis or hypoglycemia of such frequency or severity to meet the threshold for an evaluation in excess of 20 percent. The May 2016 report also reflects that the Veteran did not have progressive unintentional weight loss and loss of strength due to diabetes mellitus. A March 2010 VA examination report also shows that the Veteran did not require insulin or regulation of activities. The examiner noted no visits to a diabetic care provider due to ketoacidosis or hypoglycemic reactions within the preceding year. The Veteran denied loss of muscle strength. As stated earlier, the Veteran's 20 percent evaluation encompasses the Veteran's diabetic retinopathy unless the evidence can show that such retinopathy separately rises to a compensable level. Retinopathy is rated under DC 6006 according to the General Rating Formula for Diagnostic Codes 6000 through 6009. 38 C.F.R. § 4.79. Under the General Rating Formula, eye disabilities are rated based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher rating. An incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. Generally, corrected distant vision determines the level of impairment of visual acuity. 38 C.F.R. § 4.76(b). A noncompensable rating is assigned when vision is corrected to 20/40 in both eyes; there is no rating for visual acuity superior to 20/40. 38 C.F.R. § 4.79. Visual impairment can also be rated based on impairment of visual field or muscle function. 38 C.F.R. §§ 4.77, 4.78. A February 2017 VA examination report shows corrected visual acuity in both eyes as 20/40 or better. The report notes that the Veteran had not had any incapacitating episodes attributable to eye conditions in the last 12 months. The examiner noted mild, nonproliferative diabetic retinopathy in the right eye with no effect on vision or function. The examiner noted early cataracts, due to aging and not diabetes mellitus, with no effect on vision or function. Previous examinations offer no further evidence that the Veteran's retinopathy approached compensable levels within the appeal period. A July 2009 VA examination report shows corrected visual acuity of 20/30 at distance and near for the right eye; and 20/25 at distance, 20/30 at near for the left eye. A February 2007 VA examination report shows correct visual acuity of 20/25 at distance, 20/20 at near for the right eye; and 20/25 at distance, 20/20 at near for the left eye. Consequently, the Veteran's diabetic retinopathy does not rise to a compensable level, and does not warrant a separate compensable rating. As the evidence establishes that the Veteran's diabetes mellitus II has not worsened beyond currently evaluated levels, the benefit-of-the-doubt doctrine is inapplicable, and the claim for an increased rating in excess of 20 percent for diabetes mellitus type II, as well as any claim for a separate compensable rating for diabetic retinopathy, is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. 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 requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A. Disability manifested by irregular and painful menses The Veteran contends that she suffers from a disability manifested by irregular and painful menses incurred in or caused by service. The Board notes several post-service diagnoses and treatment records concerning menstrual issues. VA treatment records between October 1994 and September 2008 document complaints of irregular periods, heavy bleeding when she does get her period, swelling during her period, diagnoses of dysfunctional uterine bleeding, menorrhagia, amenorrhea, oligorrhea, and an anovulatory cycle. A March 2007 VA examination report provides diagnoses of dysfunctional uterine bleeding and menorrhagia. VA treatment records reflect that in November 2007, the Veteran underwent an abdominal hysterectomy to treat dysfunctional uterine bleeding. Post-service August 1989 and September 1989 letters from a private physician reflect diagnoses of mild hyperandrogenism and amenorrhea secondary to hyperandrogenism. An April 2006 VA treatment record provides that the Veteran reported that after her in-service pregnancy, she did not have a period for about 8 years. January 2012 CAPRI record found in Legacy Content Manager. After that, she had periods only about every 4 months and would experience significant bloating, heavy bleeding, nausea, fatigue, and irritability. An October 2014 VA examination notes the Veteran no longer has a monthly cycle with blood loss due to her hysterectomy. While such circumstances may indicate the Veteran does not have any menstrual disability contemplated by schedular criteria after her hysterectomy, the record contains evidence of potentially disabling symptoms within the appeal period given that the Veteran submitted her claim in July 2005, and did not have her hysterectomy until November 2007. The record also presents several in-service records that may relate to the abovementioned symptoms. A July 1988 report of medical history at service separation reflects that the Veteran underwent dilation and curettage (D&C) procedures following a January 1985 miscarriage and following the delivery of her child in September 1987. An October 1988 service treatment record (STR) indicates that the Veteran's menstrual periods are "somewhat regular, although occasionally late." A November 1988 STR documents, "dysmenorrhea; light and irregular menses x 6 months with vague history x1 year." On the Veteran's July 1988 separation questionnaire, she marked "yes" as to having had changes in her menstrual pattern. The record therefore presents evidence of a disorder manifested by painful and irregular menses within the appeal period, as well as evidence of in-service events that might constitute the incurrence of such a disability. Thus, the remaining question for service connection concerns whether competent medical evidence establishes that the Veteran's post-service menstrual disorder diagnoses are related to any of the in-service events. Hickson v. West, 12 Vet. App. 247, 252 (1999)(determinative issues of medical causation require competent medical evidence); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question as to whether any of the Veteran's menstrual disorders within the appeal period relate to any in-service menstrual issues is a complex medical question that the Veteran is not competent to answer. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Additionally, the Board may not inject its own medical opinion as to the etiology of such a disability. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding the Board is without expertise to opine as to medical matters). Accordingly, VA obtained medical opinions to address whether any of the Veteran's menstrual disorders are related to the abovementioned in-service events. The most recent, February 2017 VA examination report assessed post-service menstrual disorder diagnoses of dysfunctional uterine bleeding, menorrhagia, and the total abdominal hysterectomy, and found that they were less likely than not to have been incurred in or caused by service. The examiner opined that "irregular bleeding and painful periods following a birth of a child is not uncommon. " Additionally, the examiner noted that "irregular menses and/or amenorrhea is also common if a woman breast feeds her child as indicated by nursing notes 9/22/1987." The examiner ultimately opined that the Veteran's complaints of irregular menses as documented by STRs, as well as any in-service pregnancy complications, were not etiologically related to any of the Veteran's post-service menstrual disorders, as well as her post-service hysterectomy. An October 2014 VA examination report offers no positive evidence of a relation between the Veteran's current menstrual disorders and service. Although the October 2014 VA examination served as a basis for remand for failing to address the etiology of post-service menstrual disorder diagnoses, which was later addressed by the abovementioned February 2017 VA examination, the October 2014 VA examiner did specifically address the August and September 1989 private doctor letters concerning amenorrhea secondary to hyperandrogenism. The October 2014 VA examiner opined that the post-service hyperandrogenism diagnosis was separate from any condition leading to dysfunctional uterine bleeding and the Veteran's later hysterectomy. Thus, the October 2014 and February 2017, taken together, present opinions that none of the Veteran's post-service menstrual disorders are related to service. In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value. See Owens v. Brown, 7 Vet. App. 429 (1995); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). To this end, the Board finds the evidence to weigh against the Veteran's claim. The Board has considered the Veteran's contention that she has suffered from menstrual disorders due to service. The Board further acknowledges that the Veteran reported menstrual issues in service, and suffered from menstrual issues after service. While such facts weigh in favor of the Veteran's claim, they are nevertheless outweighed by the competent medical opinions of record that opine against any in-service etiology of the Veteran's post-service menstrual disorders, and differentiate between reported in-service and post-service menstrual disorder symptomatology. Even when an appellant submits evidence to fulfill the first two prongs of service connection claim, the appellant must still submit medical evidence of a causal relationship between any current conditions and military service. Wade v. West, 11 Vet. App. 302, 306 (1998). VA examinations were directed based on the indication that the Veteran might have a current menstrual disability related to service, and such examinations were taken pursuant to the duty to assist the Veteran to substantiate the third prong of her service connection claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Nevertheless, such examinations yielded opinions that any current menstrual disorders were not related to service. As stated previously, neither the Veteran nor the Board are competent to attest to the etiology of such conditions, and absent a competent medical opinion to the contrary, which the Veteran has always been free to attempt to obtain and submit on her own accord, the Board cannot find competent medical evidence of a causal nexus between any current menstrual disorder and service. In light of the foregoing, the Board finds the evidence to weigh against the Veteran's claim for service connection for a disability manifested by irregular and painful menses. As such, the benefit-of-the-doubt doctrine is inapplicable and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Anemia The Veteran contends she warrants service connection for anemia as secondary to blood loss due to her menstrual disorder. She alternatively contends that in-service obstetric complications caused the anemia. Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For a Veteran who served 90 days or more of active duty after December 31, 1946, there is a presumption of service connection for certain enumerated "chronic diseases", such as anemia, primary, if the disability manifests to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303 (b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a preliminary matter, service connection for anemia as secondary to a disability manifested by painful and irregular menses is unavailable, as the Board has denied service connection for the Veteran's claimed menstrual disability. See 38 C.F.R. § 3.310. Moreover, the record contains no indication that anemia may be secondary to any of the Veteran's other service-connected disabilities. The Board thus turns to service connection on a direct basis for anemia. As with the menstrual disorders, the record presents evidence that the Veteran currently suffers from anemia, and STRs reflect evidence that may be related to such anemia. As before, the question of nexus remains. A February 2017 VA examiner noted that the Veteran presented with anemia, and that the Veteran was diagnosed in-service with acute anemia secondary to blood loss due to pregnancy complications. The examiner noted that multiple complete blood count (CBC) lab results taken prior to discharge were within normal limits. Consequently, the examiner opined that any acute anemia secondary to blood loss as a complication of pregnancy resolved without residuals prior to discharge from service. The February 2017 VA examiner further opined that the Veteran's post-service anemia is due to non-service connected post-service gastric bypass that resulted in nutrient malabsorption, as well as non-service connected, post-service menorrhagia. Previous examinations on this matter reach substantially the same conclusion as the February 2017 examination, albeit for different reasons. An October 2014 VA examination report reflects the opinion that the Veteran's anemia is due to her inability to absorb nutrients following 2003 gastric bypass surgery, which was unrelated to service. The examiner further stated that because the Veteran had a hysterectomy in November 2007 and, therefore, no longer has a menstrual cycle, her anemia could not be related to her menorrhagia, defective uterine bleeding, menstrual irregularities, or vaginal bleeding. A March 2007 VA examination report states the Veteran's anemia was not a result of her service-connected diabetes, but is "more likely than not to have resulted from her untreated metrorrhagia." Again, the Board has deemed any post-service menstrual disorders as not service-connected. Ultimately, none of the medical opinions of record support a nexus between any current anemia and an in-service injury or disease. As with the post-service menstrual disorders, the Board notes the Veteran's lay contentions and acknowledges that the first two prongs of her direct service connection claim might indeed be met. Nevertheless, competent medical evidence of record weighs against the Veteran's claim with respect to the required third prong of causal nexus for direct service connection. Service connection is also unavailable on a presumptive basis for anemia as a chronic disease. As noted earlier, the February 2017 VA examiner opined the Veteran's in-service anemia to be acute and directly related to blood loss as a complication of pregnancy that resolved prior to separation from service, and thus, is distinguished from any post-service diagnosis of chronic anemia due to nutrient malabsorption post-gastric bypass; or due to non-service connected, post-service menorrhagia prior to the Veteran's November 2007 hysterectomy. Indeed, the Veteran's July 1988 separation examination makes no mention of any chronic anemia. CAPRI records indicate anemia as an active problem as of January 2003. Consequently, the occurrence of post-service anemia is so attenuated from service so as to preclude a finding of continuity of anemia symptomatology since service. For the above reasons, the Board finds the evidence to preponderate against service connection for anemia, the benefit-of-the-doubt doctrine inapplicable, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus, to include a separate compensable rating for diabetic retinopathy, is denied. Entitlement to service connection for a disability manifested by irregular and painful menses is denied. Entitlement to service connection for anemia, to include as secondary to a disability manifested by irregular and painful menses, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs