Citation Nr: 1804490 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-25 416A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an eye disability, as secondary to diabetes mellitus. 2. Entitlement to service connection for a psychiatric disorder, as secondary to diabetes mellitus. 3. Entitlement to service connection for right knee disability. 4. Entitlement to service connection for left knee disability. 5. Entitlement to service connection for back disability 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 7. Entitlement to a separate compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). In September 2016, the RO granted service connection for carpal tunnel syndrome and peripheral vascular disease. This was considered a full grant of benefits. Therefore, these issues are not before the Board. The issues of entitlement to service connection for an eye, knee, and back disability and entitlement to 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. There is no competent evidence of a psychiatric disability. 2. The Veteran is in receipt of a 60 percent rating under 38 C.F.R. § 4.115a, based upon renal dysfunction. CONCLUSIONS OF LAW 1. A psychiatric disability was not incurred in or aggravated by service and is not caused or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for a separate compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.14, 4.104, DC 7101, 4.115b, DC 7541 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA's duty to notify was satisfied by letters dated in January 2011 and June 2011. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA examinations have been conducted, and VA records obtained. Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Entitlement to service connection for a psychiatric disorder (anxiety and irritability), as secondary to diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the 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." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. The Board notes that the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its determinations, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran asserts that he has anxiety and irritability as secondary to his service-connected diabetes mellitus. Service connection may 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) (2017). 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). In terms of service treatment records, the entrance examination noted normal psychiatric examination. In the October 1965 pre-induction Report of Medical History, the Veteran reported excessive worries. Separation examination dated in January 1968 noted that the Veteran was normal psychiatrically. He did not report any psychiatric symptoms in his separation Report of Medical History. In the December 2010 letter, Dr. O. noted that the Veteran had episodes of frustration, irritability and anxiety. In the September 2011 VA psychiatric examination, the examiner found no current mental diagnosis. The examiner noted that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning. The Veteran reported episodes of feeling sad due to complications of life and a difficult economic situation. He also reported sleeping difficulties. VA treatment records were silent for any psychiatric treatment. Having carefully reviewed the record, the Board has concluded that service connection is not warranted for a psychiatric disability. In this regard, the Board notes that there is no evidence of a psychiatric disorder that is related to service. The Board acknowledges that the Veteran reported excessive worrying on a pre-induction Report of Medical History. Despite this, there is further indication of symptoms of a psychiatric disability during service and no current disability. For the purpose of secondary service connection, the Board observes that there is a diagnosis of diabetes mellitus that is subject to service connection. However, the Veteran has neither produced nor identified competent evidence demonstrating a diagnosis of any psychiatric disorder. To the extent that the Veteran asserts that he has a current psychiatric disorder that is related to a service-connected disease or injury, 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). However, the VA psychiatric examination was negative for a diagnosis of any psychiatric disorder. There is no competent evidence that counters the VA examiner's conclusion that no diagnosis is warranted. The statement of Dr. O that the appellant has had episodes of frustration, irritability and anxiety falls far short of establishing the presence of a recognized psychiatric disorder and pales in significance to the findings on the VA examination. In short, there is no evidence of a current acquired psychiatric disorder at any point during the appeal period. 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 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). The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service. While the Veteran asserts that he has anxiety and irritability, the record fails to demonstrate a diagnosis for a psychiatric disorder for which service connection may be granted. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert; 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). Entitlement to a Separate Compensable Rating for Hypertension The Veteran filed a claim for hypertension as secondary to diabetes mellitus in September 2007. The RO denied his claim in August 2008. The Veteran again filed a claim for high blood pressure in January 2011. In an April 2016 rating decision, the RO included the Veteran's diagnosis of hypertension within the issue of chronic renal disease. The Veteran believes that a separate evaluation should be assigned for hypertension that is distinct from his chronic renal disease disability which is rated under Diagnostic Code 7541. DC 7541 for renal involvement in diabetes mellitus, is to be rated according to renal dysfunction. Under this regulation, a 60 percent rating is warranted for renal dysfunction with constant albuminuria with some edema, or definite decrease in kidney function, or, hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%, or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. The maximum 100 percent rating is warranted where regular dialysis is required or the renal dysfunction precludes more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Under DC 7101, which governs ratings of hypertensive vascular disease (hypertension and isolated systolic hypertension), a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. 10 percent is also the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent evaluation is assignable for diastolic pressure predominantly 120 or more. A 60 percent evaluation is assignable for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.115 states, "Separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities. If, however, absence of a kidney is the sole renal disability because of nephritis, the absent kidney and any hypertension will be separately rated. Also, in the event that chronic renal disease has progressed to the point where regular dialysis is required, any co-existing hypertension or heart disease will be separately rated." 38 C.F.R. § 4.115. In this case, the Veteran requires continuous medication to control his hypertension, but regular dialysis has not been necessary, nor is there evidence of an absent kidney. See March 2016 VA examination report. The examiner even noted that the Veteran's renal disease had improved. As the regulation indicates hypertension will be separately rated when regular dialysis is required or in the event of an absent kidney, it may correspondingly be inferred that hypertension will not be separately rated when regular dialysis is not required or there are two kidneys present. Moreover, the Board notes that generally hypertension is rated under DC 7101, which is located in 38 C.F.R. § 4.104 "Schedule of ratings - cardiovascular system" and under the general category "Diseases of the Heart." As noted, 38 C.F.R. § 4.115 specifically precludes separate ratings for heart disabilities and any form of nephritis - other than in the case of a missing kidney or required regular dialysis. Due to 38 C.F.R. § 4.115 and the rule against pyramiding (38 C.F.R. § 4.14 ), the Board finds that in this case separate compensable ratings are not available for hypertension and renal insufficiency, as the schedular criteria for renal insufficiency specifically contemplate hypertension and its related symptoms. Finally, the Board finds that a higher schedular rating is not available under the hypertension rating criteria of DC 7101, as the Veteran already is in receipt of the highest possible rating that could be granted for hypertension under that DC (60 percent), based on his rating under 38 C.F.R. § 4.115a for renal dysfunction. For the foregoing reasons, the preponderance of the evidence reflects that a separate compensable rating is not warranted for hypertension for any period on appeal. The benefit-of-the-doubt doctrine is therefore not for application, and this claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. ORDER Entitlement to service connection for anxiety and irritability is denied. Entitlement to a separate compensable evaluation for hypertension is denied. REMAND The Board finds that an opinion is needed as to whether the Veteran's current eye disability is due to his diabetes mellitus. Although the Veteran received a VA examination in April 2016, the examiner did not review the claims file. Also, the examiner noted that the Veteran's pseudophakia were due to cataracts surgery but did not opine as to whether the Veteran's cataracts were caused or aggravated by his service-connected diabetes mellitus. In a May 2015 Diabetes Mellitus Disability Benefits Questionnaire, a physician noted that cataracts were at least as likely as not due to diabetes mellitus. Despite this, the physician failed to provide a rationale for his opinion. In a December 2010 letter, Dr. O. opined that ocular abnormalities were associated with diabetes which included fluctuating visual acuity and cataracts which the Veteran presents. Dr. O. provided no rationale for this opinion. For these reasons, the Board finds that a new opinion is needed that addressed whether any current eye disability is caused or aggravated by his service-connected diabetes mellitus. The Veteran claims that his knee and back disabilities are due to his military service. See October 2011 Notice of Disagreement. In the December 2010 letter, Dr. O. opined that the Veteran's back and knee problems were due to his training while in service. She noted that current imaging studies showed disc herniation at L5-S1 and left knee meniscal tear. She explained that the training caused him to have back and knee pain that resulted in inflammatory and degenerative changes. This caused loss of correct alignment and loss of curvature of cervical thoracic and lumbar lordosis. As for other evidence of a current disability, VA treatment record show treatment for his low back pain in 2015 and 2017. The 2017 VA treatment record specifically indicated severe low back pain, severe degenerative joint disease and stenosis. A November 2011 MRI noted multiple meniscus tears. Although there is no evidence of treatment for back or knees during service, the Veteran did receive training during service and this training is what is alleged to have caused his current back and knee disabilities. The Veteran has not been afforded a VA examination for these disabilities. For these reasons, the Board finds that the Veteran should be afforded a VA examination for his back and knee disabilities. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that further development and adjudication of the Veteran's claim for service connection for an eye, back and knee disability might provide evidence in support of his claim of entitlement to a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on those issues. See Henderson v. West, 12 Vet. App. 11(1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board also finds that further medical information is needed prior to adjudication of his claim for entitlement to TDIU. For this reason, an examination should be scheduled that addresses the Veteran's renal disease in terms of functional impact. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide treatment records from Dr. O. and Dr. V. Dr. O. provided the December 2010 letter and Dr. V. provided the September 2013 letter. If Veteran is unable to obtain records, secure the necessary authorizations for release from the Veteran for this information. If the search for such records has negative results, documentation to that effect should be included in the claims file. 2. Provide the claims file to the provider who conducted the April 2016 VA eye examination, if available, for an addendum opinion addressing the Veteran's eye disabilities. The examiner should be requested to review the file and his examination report. Upon completion of that review, the examiner should provide the following opinions. a. Is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently present eye disability was caused by the Veteran's military service. Please provide rationale. b. Is it at least as likely as not (i.e., probability of 50 percent or greater) that any currently present eye disability is caused by the Veteran's service-connected disabilities, to include diabetes mellitus. Please provide rationale. c. Is it at least as likely as not that any currently present eye disability is aggravated (permanently worsened beyond normal progression) by the Veteran's service-connected disabilities, to include diabetes mellitus. Please provide rationale. The provider's attention is directed to the May 2015 Diabetes Mellitus Disability Benefits Questionnaire noting that cataracts were at least as likely as not due to diabetes mellitus. The provider is also informed that the Veteran's nonproliferative diabetic retinopathy has already been service-connected. A discussion of the complete rationale for all opinions expressed should be included in the examination report. An examination should only be provided to the Veteran if the examiner feels that another examination is necessary in order to provide the requested opinion. If the April 2016 VA examiner is not available, another competent professional may provide the opinion after reviewing the April 2016 examination report and the claims file. If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Schedule the Veteran for a VA orthopedic examination to determine the etiology of his current left and right knee disabilities. 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. The examiner should provide the following opinions: a. Is it 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 any currently present left and right knee disability are due to the Veteran's military service. b. Is it at least as likely as not that the Veteran's right and left knee disabilities are aggravated by (i.e., worsened beyond the natural progress) by any of the Veteran's service-connected disabilities. 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. Review of the entire claims file is required; however, the examiner's attention is invited to December 2010 letter by Dr. O. A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to the Veteran's lay statements and the private records. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Schedule the Veteran for a VA examination to determine whether his spine disability was related to his military service. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran's back disability was incurred during or related to his military service. Is it at least as likely as not that the Veteran's spine disability was aggravated by the Veteran's service-connected disabilities. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner's attention is invited to Dr. O.'s December 2010 letter and claims that his spine disability is due to training during service. 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. If the examiner is unable to offer any of the requested opinions, it is essential that she offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 6. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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. §§ 5109B, 7112 (2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs