Citation Nr: 1803803 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-27 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a circulatory disability, claimed as secondary to diabetes mellitus. 2. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. 3. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 5. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity. 6. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity. 7. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 8. Entitlement to an effective date prior to May 31, 2016, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities and the bilateral upper extremities. 9. Entitlement to an effective date prior to September 11, 2008 for the grant of service connection for PTSD. REPRESENTATION Appellant represented by: Michael J. Woods, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from December 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that in pertinent part, denied service connection for a circulatory condition and hypertension. This matter also comes before the Board from an October 2016 rating decision that granted service connection for PTSD, and assigned an evaluation of 30 percent, effective September 11, 2008; and a November 2016 rating decision that granted service connection for peripheral neuropathy of the lower and upper extremities and assigned a 10 percent evaluation for each extremity, effective May 31, 2016. The Veteran subsequently disagreed with the evaluations and effective dates assigned. The issue of entitlement to a total rating based on unemployability due to service-connected disability (TDIU) was raised by the Veteran's attorney in an August 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of entitlement to service connection for hypertension; higher evalautions for peripheral neuropathy of the lower and upper extremities and PTSD; and earlier effective dates for the grant of service connection for peripheral neuropathy of the lower and upper extremities and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no clinical diagnosis of a circulatory disability. CONCLUSION OF LAW A circulatory disability was not caused or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2017). The Veteran was notified of the evidence necessary to support her claims in correspondence dated in September 2008. This correspondence notified the Veteran of VA's responsibilities in obtaining information to assist him in completing her claims, identified his duties in obtaining information and evidence to substantiate his claims, and provided other pertinent information regarding the VCAA. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, private, service, and VA treatment records have been associated with the electronic claims file. While the Veteran was not provided with a relevant VA examination with regard to the claim of entitlement to service connection for circulation problems, the Board finds that an examination is not necessary. The record contains adequate information to fairly address the question of whether there is competent medical evidence reflective of a current circulatory disability. As such, an examinations is not warranted. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate his claims. The Board is also unaware of any such outstanding evidence or information. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a)(2016). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Veteran asserts that he has circulation problems that are related to his service-connected diabetes mellitus. VA and private medical records associated with the claims file are negative for any diagnosis, complaint, or abnormal finding suggestive of disability characterized by circulation problems. On VA examination in February 2009, the Veteran denied symptoms of peripheral vascular disease. Temperature of the extremities was normal. There was no peripheral edema, and pulses were normal. No diagnosis of a circulatory disability was made. Upon careful review of the record, the Board has concluded that service connection is not warranted for the claimed circulatory disability. In this regard, the Board notes that while the Veteran has stated that he has circulation problems, there has been no medical diagnosis rendered with regard to these complaints. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). The Board acknowledges the Veteran's contention that he has circulation problems; however, a symptom or a finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). There is no competent evidence of record diagnosing a current circulatory disability. The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that, under the law, a "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service." Watson v. Brown, 4 Vet. App. 309 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). To the extent that the Veteran asserts that he has a circulatory disability that is related to his service-connected diabetes mellitus, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report his symptoms. He is not, however, competent to render an opinion as to whether there is a currently existing circulatory disability and whether such disability is linked to a service connected disability, because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a circulatory disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for a circulatory disability is denied. REMAND The Veteran seeks service connection for hypertension, which he maintains is related to his service-connected diabetes mellitus. On VA examination in February 2009, the examiner diagnosed hypertension, but indicated that it was not a complication of diabetes mellitus. He reasoned that onset was at about the same time as that of diabetes mellitus, and that renal function was normal. Unfortunately, this response does not adequately discuss the medical principles underlying the examiner's conclusion to allow the Board to make a determination on the question of service connection. Moreover, in response to the question of whether hypertension was worsened by diabetes, the examiner indicated "no" without providing any rationale for that conclusion. The Board has therefore determined that an additional examination is necessary. As noted above, an October 2016 rating decision granted service connection for PTSD, and assigned an evaluation of 30 percent, effective September 11, 2008; and a November 2016 rating decision granted service connection for peripheral neuropathy of the lower and upper extremities and assigned a 10 percent evaluation for each extremity, effective May 31, 2016. The Veteran subsequently disagreed with the evaluations and effective dates assigned in a January 2017 notice of disagreement (NOD). The filing of a NOD places a claim in appellate status. Therefore, a statement of the case regarding these issues must be provided to the appellant. As such, these issues must be remanded. Manlincon v. West, 12 Vet. App. 239, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All obtained records should be associated with the evidentiary record. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his right knee disability. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his representative of such and provide him with an opportunity to submit those records directly. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of hypertension. The claims folder should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. All indicated studies should be performed. Following examination and review of the record, the examiner should provide an opinion regarding whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that hypertension is due to or aggravated by (i.e., worsened beyond the natural progress) by the Veteran's service-connected diabetes mellitus. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The complete rationale for any conclusion reached should be provided. 4. Thereafter, review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand; if not, the AOJ should implement corrective procedures. 5. Issue the Veteran a statement of the case on the issues of entitlement to higher initial evaluations for peripheral neuropathy of the lower and upper extremities and PTSD, and for earlier effective dates for the grant of service connection for those disabilities pursuant to 38 C.F.R. § 19.26 (2017). If the appellant perfects his appeal by submitting a timely and adequate substantive appeal, then the AOJ should return the claim or claims to the Board for the purpose of appellate disposition. 6. Then, readjudicate the Veteran's claim of entitlement to service connection for hypertension, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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). ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs