Citation Nr: 1805198 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 09-50 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts), to include as secondary to service-connected disability. 2. Entitlement to an effective date earlier than May 16, 2008 for special monthly compensation based on housebound status. 3. Entitlement to an initial rating in excess of 30 for cutaneous papulous rash on the right neck from May 28, 2007 to April 10, 2013, and a compensable rating thereafter. 4. Whether a reduction from a 30 percent rating to a noncompensable rating for cutaneous papulous rash on the right neck, effective April 10, 2013, was proper. 5. Entitlement to an effective date earlier than May 28, 2007 for service connection for cutaneous papulous rash on the right neck. 6. Entitlement to an increased rating in excess of 10 percent for bilateral non-proliferative diabetic retinopathy. 7. Entitlement to an effective date earlier than March 14, 2017 for service connection for tinnitus. 8. Entitlement to an initial compensable rating for scars, left upper extremity, right and left lower extremities from leg stent and venous harvest attempts, and left, second toe. 9. Entitlement to an effective date earlier than April 4, 2017 for service connection for scars, left upper extremity, right and left lower extremities from leg stent and venous harvest attempts, and left, second toe. 10. Entitlement to an increased rating in excess of 40 percent for left lower extremity peripheral artery disease (previously rated together with left lower extremity peripheral neuropathy). 11. Entitlement to an increased rating in excess of 20 percent for right lower extremity peripheral artery disease, status-post bypass surgery (previously rated together with right lower extremity peripheral neuropathy). 12. Entitlement to an increased rating in excess of 10 percent for left lower extremity peripheral neuropathy (previously rated together with left lower extremity peripheral artery disease). 13. Entitlement to an increased rating in excess of 40 percent for right lower extremity peripheral neuropathy (previously rated together with right lower extremity peripheral artery disease) prior to April 26, 2017 and in excess of 10 percent thereafter. 14. Whether a reduction from a 40 percent rating to a 10 percent rating for right lower extremity peripheral neuropathy (previously rated together with right lower extremity peripheral artery disease), effective April 26, 2017, was proper. 15. Entitlement to an increased rating in excess of 10 percent for left upper extremity peripheral neuropathy. 16. Entitlement to an increased rating in excess of 10 percent for right upper extremity peripheral neuropathy. 17. Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss. 18. Entitlement to a compensable rating for hypertension. 19. Entitlement to an increased rating in excess of 20 percent for amputation of the left, second toe. 20. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II, with erectile dysfunction. 21. Entitlement to service connection for sleep apnea. 22. Entitlement to a total disability rating based upon unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1962 to July 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2008, June 2017 and August 2017 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs) The Veterans Appeals Control and Locator System (VACOLS) shows that the Veteran failed to appear for a scheduled hearing before the Board at the Central Office in Washington, D.C., in January 2013. He has not requested that the hearing be rescheduled or provided good cause for his failure to appear. Thus, his hearing request is considered withdrawn. 38 C.F.R. § 20.702 (2017). The claim for service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts) has been before the Board previously, and its history has been summarized in previous Board decisions. More recently, in February 2017, the Board remanded the issue. For the reasons discussed below, the Board finds that there has been substantial compliance with the development sought as part of the February 2017 remand. Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the Board remanded the case for further development in February 2013. In a June 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for bilateral eye non-proliferative diabetic retinopathy, indicating that the determination represented a full grant as to that eye claim. In a December 2015 decision, the Board denied other claims that had been on appeal and remanded the claim for service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts) for further development. In so doing, the Board acknowledged the June 2013 rating decision, but determined that the issue of service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy remained on appeal based on the October 2015 subsequent argument from the Veteran's representative at that time. In August 2016, the Board granted a 90-day extension for the Veteran's current representative to submit additional evidence and argument following his receipt of a copy of the claims file. The Veteran's representative submitted additional argument and evidence the following month, along with a waiver of initial AOJ consideration. The Board observes that the additional evidence is related to the issue of unemployability, one of the issues the Board is remanding. The issues numbered 2 through 22 on the title page of this decision are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The Veteran does not have a bilateral eye disorder, other than non-proliferative diabetic retinopathy, to include bilateral cataracts, that is etiologically related to his active service or to a service connected disability. CONCLUSION OF LAW The criteria for service connection for bilateral eye disorder, other than non-proliferative diabetic retinopathy, to include bilateral cataracts, secondary to diabetes mellitus type II have not all been met. 38 U.S.C. §§ 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran in June 2008 and April 2017. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and private treatment records are associated with the claims. VA provided relevant examinations as discussed in further on in the decision. In this regard, as noted in the Board's February 2017 Remand, the record contains partial service treatment records and, since this time, in an April 2017 letter, the RO has determined that additional service treatment records cannot be located and further efforts to obtain the records would be futile. The RO submitted a request for these records in February 2017. In a March 2017 response, the Personal Information Exchange System (PIES) indicated that on March 2, 2017, all available requested records were shipped to the contracted vendor for upload into the Veterans Benefits Management System (VBMS). The Veteran was asked to provide copies of all service treatment records in his possession in an April 2017 letter. Additionally, the April 2017 letter identified the actions undertaken to obtain any additional service treatment records to include a February 2017 response, from the National Personnel Records Center (NPRC), which indicates that all additional records were sent. These records obtained include military personnel records and a January 1962 enlistment examination. In March 2017, the RO also referenced the Joint Legacy Viewer, which does not indicate that additional records were found. In an appeal such as this, in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist a veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 370 (2005). However, this heightened obligation does not establish a heightened "benefit of the doubt" or lower the legal standard for proving a claim of service connection; rather, it increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a veteran. See Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Service Connection - Bilateral Cataracts, Secondary to Diabetes Mellitus Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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). The Veteran claims entitlement to service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts), as secondary to service-connected diabetes mellitus. Notably, the Veteran is currently service-connected for non-proliferative diabetic retinopathy, secondary to service-connected diabetes mellitus. The Veteran has been diagnosed with bilateral cataracts OU satisfying the first element of a service connection claim. Thus, the dispositive issue in this case is whether bilateral cataracts is related to his diabetes mellitus disability. In this case, as discussed below, the preponderance of evidence is against a finding that bilateral cataracts is so related. Pertinent evidence in this case consists of VA examinations and medical opinions dated in October 2008, April 2013, January 2016, and April 2017 to determine whether any eye disability was related to service. The Veteran's service treatment records do not indicate diagnosis or treatment related to the claimed disability. A VA examination report in October 2008 notes the examiner diagnosed the Veteran with early cataracts in both eyes that were not related to the service-connected diabetes mellitus; however, there was no rationale for the conclusion reached. A VA eye examination report in April 2013 indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported that he was diagnosed with diabetes in 1987 and started on oral medication and thereafter diagnosed with cataracts in 2008. The examiner diagnosed the Veteran with age-appropriate senile cataracts that were not directly related to his military service. A clarifying opinion was obtained from the April 2013 VA examiner in January 2016 in response to the Board's prior remands. The examiner diagnosed the Veteran with age-appropriate senile cataracts that were not directly related to his military service or due to or aggravated by his service-connected diabetes mellitus. In so finding, the examiner referenced medical studies for diabetes mellitus and the prevalence and severity of cataracts in patients before and after the age of 65, noting the timing of the Veteran's diagnosis. The examiner also determined that any worsening of the Veteran's cataracts since they were first manifested was due to the natural progression of the disease. In February 2017, the Board remanded the claim finding that it is unclear if the April 2013 examiner considered the complete history of the development of cataracts, including the private eye treatment records added to the claims file in 2013. Pursuant the Board's February 2017 Remand, in April 2017 an addendum medical opinion was obtained. The practitioner who conducted the April 2013 VA examination and also provided the subsequent January 2016 medical opinion concluded that following a thorough review of the Veteran's history, a thorough review of the claims file, and a thorough review of medical literature, that the Veteran's cataracts are age-related and not as a result of service-connected diabetes. The clinician's rationale was: We know that in young people with juvenile diabetes, diabetes has been associated with a unique form of cataract called snow flake cataract. This cataract has a unique appearance and is the only type of cataract known to be reversible. The link between diabetes and cataracts in adults is no longer clear. Older textbooks have the term 'diabetic cataract' but this term has never been well defined. Recent studies question the link between diabetes and adult cataract. There have been two large prevalence studies that compared adult patients with diabetes and patients without diabetes. After the age of 65, there is no difference in the prevalence and severity of cataract of any type between the patients with diabetes and the patients without diabetes. Under the age of 65, there was a slightly higher incidence of cortical cataract in patients with diabetes and again for all other types of cataracts there was no difference in prevalence. There are several studies that show an association between cataracts and diabetes, or that show a higher incidence of cataracts in diabetic patients, but none of these studies define a causal relationship. In other words, none of these studies show that diabetes is the cause of the cataracts. It is not clear if the slightly higher incidence of cortical cataracts is related to diabetes or related to generic, nutritional, or environmental factors that are common to both diabetes and cortical cataracts, thus no causal relationship has been established, just an associated finding. There are no prospective studies that link diabetes to cataracts. The development of cataracts is multifactorial, with contributions including genetics, age, environmental exposures, medications, trauma and other factors. An individual's development of cataract cannot be predicated and cannot be attributed with absolute certainty to any single cause. The clinician further noted that the Veteran was diagnosed at age 67 with age related senile nuclear cataracts. The clinician explained that senile nuclear cataracts are age-related and do not show any higher association in patients with diabetes and that more recent animal studies have shown that the presence of diabetes may actually slow the progression of certain cataracts, such as nuclear cataract. In so finding, the clinician explained that the Veteran later developed cortical cataracts, but given his age is over 65, there is no higher incidence of diabetic patients in this age range known to have cortical cataracts. The clinician concluded that it is therefore, less likely than not (less than 50 percent probability) that bilateral cataracts was caused by military service or permanently aggravated by the Veteran's service-connected diabetes mellitus. Thereafter, in May 2017 the Veteran was afforded a VA-contracted eye examination to determine the severity of service-connected bilateral non-proliferative diabetic retinopathy. The resulting examination report indicates the examiner did not review the claims file in conjunction with the examination. The examiner diagnosed psuedophakia (residuals of cataracts) describing the condition as a separate diagnosis from the service-connected bilateral non-proliferative diabetic retinopathy. There is no further etiology opinion. (Notably, the May 2017 examination was not considered by the December 2017 SSOC, which continued the denial of service connection for an eye disorder other than non-proliferative diabetic retinopathy because the examination was afforded in a separate appeal for increased rating for service-connected bilateral non-proliferative diabetic retinopathy.) Additionally an April 2013 VA diabetes mellitus examination report and April 2017 VA-contracted diabetes mellitus examination report does not indicate diagnosis or discussion of additional eye disability other than diabetic retinopathy. VA treatment records show the Veteran received treatment for diabetes mellitus however, these records do not show the Veteran was treated for an eye disorder other than bilateral non-proliferative diabetic retinopathy. Private treatment records also show the Veteran received treatment for his eye disorders. Specifically, private treatment records from Clear Vision Optometry dated in November 2009 show the Veteran underwent eye examinations for diabetic minor cataracts. It is noted that the Veteran reported his last eye exam was two to three years ago and he was having difficulty seeing and problems with reading. According to the Veteran's reports he had stopped going to the VA for eye exams in November 2008. Additionally, private treatment records from Hampton Roads Eye Associates and Riverside Hampton Surgery Center show treatment and surgery for traction retinal detachment and hemorrhage in August 2013. In light of the forgoing, the Board finds that entitlement to service connection for a bilateral eye disorder other than non-proliferative diabetic retinopathy, to include bilateral cataracts is not warranted. The preponderance of evidence is against a finding that the nexus element has been met, to include consideration of secondary service connection related to service-connected diabetes mellitus. Service treatment records are devoid of evidence of a diagnosis or symptoms indicated to be related to an eye disorder disability during service, and the record does not show a competent diagnosis of bilateral cataracts until October 2008, as identified by the October 2008 VA-contracted examination, more than 20 years following separation from military service. The Board finds the April 2017 addendum medical opinion of the VA practitioner who conducted the April 2013 VA examination (with January 2016 addendum medical opinion) highly probative evidence against the claim because it includes a logical rationale supporting the practitioner's conclusion. The Board has considered the Veteran's statements describing his symptoms of his eye disorder to include difficulty seeing and reading, and also that current eye disability other than service-connected bilateral non-proliferative diabetic retinopathy is secondary to his service-conned diabetes mellitus. To the extent that the Veteran believes his bilateral cataract disability is related to his service-connected diabetes mellitus disability, the Board finds any lay opinion to this effect to not be competent evidence. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit addressed the competency of lay diagnoses, stating as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether this opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. A review of the record evidence shows there is no indication that the Veteran has medical expertise. Whether current bilateral cataracts is related to diabetes mellitus, is not a simple question subject to non-expert opinion evidence. Whether one medical condition causes or worsens another is not a simple question amenable to lay opinion evidence. Thus, to the extent that the Veteran contends that his bilateral cataracts condition is caused by or worsened by another medical condition, his opinion is not competent evidence. Additionally, when addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). As explained above, as to bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts), the only theory that is reasonably raised by the Veteran's contentions or the evidence of record is that the condition is secondary to the service-connected diabetes mellitus disability. Thus, reading the April 2017 opinion of the VA-contracted examiner as a whole and in the context of the evidence of record, the underlying rationale that the Veteran's current bilateral cataract disability, diagnosed many years after service discharge, is less likely than not related to service-connected diabetes mellitus disability is probative. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Again, reading the medical evidence as a whole, that evidence is also against a finding that the Veteran's current bilateral cataract disability has been aggravated by his diabetes mellitus. Significantly, there is no probative contrary medical opinion in the evidence of record. In this regard, concerning entitlement to direct service connection, as discussed above, the first post-service evidence of diagnosis of bilateral cataracts was in October 2008. Further, the service treatment records, to include his April 1984 separation of medical history indicates that the Veteran checked the box indicating he did not know if he had or currently has eye trouble. The April 1984 separation report of medical examination, however is devoid of reference to complaint of, symptoms, treatment, or diagnoses of problems related to the eyes and he received a normal clinical evaluation with regard to any related system or anatomy. For these reasons, the Board finds that the issue of entitlement to service connection for bilateral cataracts is not reasonably raised by the evidence of record and need not be further addressed. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory"). For the above reasons, the Board concludes that the preponderance of the evidence is against granting service connection for bilateral eye disorder other than non-proliferative diabetic retinopathy on any theory of entitlement raised by the Veteran or the record. Thus, there is no reasonable doubt to be resolved in the Veteran's favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for bilateral eye disorder other than non-proliferative diabetic retinopathy (claimed as cataracts), is denied. REMAND The record reflects that the Veteran filed a notice of disagreement (NOD) with claims adjudicated by the RO subsequent to the rating decision currently on appeal. Specifically, the issues numbered 2 through 22 on the title page of this Remand, in rating decisions dated in June 2017 and August 2017. The Veteran filed an NOD with respect to these issues in August 2017 and September 2017. To date, the RO has not responded to the Veteran's NOD's nor issued a Statement of the Case as to these issues; therefore, a remand is required. See Manlincon v. West, 12 Vet. App. 238 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Issue the Veteran a statement of the case addressing the issues numbered 2 through 22 on the title page of this Remand. The Veteran must be advised of the time limit for filing a substantive appeal. Only return the issues to the Board to which the Veteran timely perfects his appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 (West 2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs