Citation Nr: 1805236 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 11-15 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus (diabetes), to include as secondary to service-connected hypertension. 2. Entitlement to a compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1988 to July 2006 This matter comes before the Board of Veterans Appeals (Board) on appeal from September 2006 and March 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, and Houston, Texas. A hearing was scheduled in this matter for November 15, 2017. However, the Veteran did not appear at this hearing, and in his informal hearing presentation, the Veteran's representative acceded that a hearing was not necessary to prosecute the Veteran's claim. FINDINGS OF FACT 1. In a June 2009 rating decision, the claim of entitlement to service connection for diabetes was denied due to a lack of diagnosis of diabetes, and for lack of evidence that the Veteran's symptoms were etiologically related to service. 2. The evidence added to the record since the June 2009 decision became final is related to an unestablished fact that is necessary to substantiate the claims of service connection for diabetes. 3. The Veteran's current diabetes is not etiologically related to service. 4. During the appeal period, the Veteran's diastolic pressure was not predominantly 110 or more and his systolic pressure was not predominantly 200 or more. CONCLUSIONS OF LAW 1. The June 2009 rating decision that denied service connection for diabetes is final. 38 U.S.C. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. As the evidence received subsequent to the June 2009 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for diabetes have been met. 38 U.S.C. §§ 5108 , 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017). 3. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1111, 5103(a), 5103A (2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307 (2017). 4. The criteria for a 10 percent rating, but no more, for hypertension have been met. 38 U.S.C. § § 1155 , 5107 (2014); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159 (2017). Accordingly, the Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. Hence, the Board is satisfied that the duty to assist was met. 38 U.S.C. § 5103A (2014); 38 C.F.R. § 3.159(c) (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). New and Material Evidence To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the Veteran is seeking service connection for diabetes. This claim was previously denied by the RO in June 2009 on the basis that there was no current clinical diagnosis of diabetes, and because there was no proof that the Veteran's diabetes onset in service or within one year of separation, or that it was etiologically related to service, to include his service connected hypertension. The Veteran did not submit a notice of disagreement to that decision, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). As such, it represents the last final denial of the claim. While the Veteran's representative submitted correspondence indicating that the Veteran does not want to continue his appeal, The Veteran submitted a request to reopen his claim for diabetes in September 2009. Based on the evidence submitted since the June 2009 rating decision became final, the Board determines that the claim should be reopened. Prior to the June 2009 decision becoming final, the evidence of record consisted of the Veteran's compensation claim for diabetes, service treatment records and medical treatment records indicating the Veteran's blood glucose readings, and an October 2008 prescription for metformin. Evidence submitted subsequent to the June 2009 rating decision includes service treatment records, a letter from the Veteran's physician confirming his October 2008 diagnosis of diabetes and treatment for hypertension, studies submitted by the Veteran regarding thiazide-induced diabetes, a February 2010 VA examination for diabetes mellitus type II, and statements from the Veteran regarding thiazide-induced diabetes and apparent impaired glucose tolerance during service. Not only is this evidence new, in that it was not previously considered by the RO; it is also "material," as it relates to an unestablished fact necessary to support the claim, which in this case is the possibility that the Veteran developed diabetes from hypertension medication, to include thiazides. The Board finds that this evidence, taken together, triggers the duty to assist. See Shade at 117. Therefore, the application to reopen the claim for diabetes is granted and the claim is reopened. Service Connection The Veteran is seeking secondary service connection for type 2 diabetes mellitus (diabetes). Specifically, the Veteran, through his representative, contends that his diabetes is caused by thiazide medication prescribed for his hypertension. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence 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 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112 , 1113 (2014); 38 C.F.R. §§ 3.307 (a)(3) (2014), 3.309(a) (2017). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a) (2017). 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) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310 (a) (2017); Allen v. Brown, 7 Vet. App. 439 (1995). In this case, after reviewing all evidence currently of record, the Board determines that service connection for diabetes is not warranted because the evidence does not show that the Veteran's diabetes is related to or had its onset during his service, nor is it related to his service-connected hypertension. First, the Veteran is not precluded from establishing service connection for his diabetes with proof of actual direct causation as due to active duty service. However, service connection is not warranted on this basis. The Veteran's service treatment records show no treatment for or symptoms of diabetes in service. Several service records, including those dated December 2004 and February 2005, indicate higher than usual glucose levels. However, none of these records indicate that the Veteran's glucose level was outside of normal levels, or that it otherwise supported a diagnosis of diabetes. Further, while a medical examination conducted in March 2006, near the end of the Veteran's service, indicates that the Veteran may not have been fit for continued service, this examination cites other reasons and does not mention diabetes. In fact, the post-service evidence does not reflect symptoms related to diabetes until his October 2008 diagnosis, two years after service. The Veteran does not contend, nor does the evidence suggest, that his diabetes was diagnosed or present prior to this date. Accordingly, continuity of symptomatology is not shown by the medical record or by the Veteran's statements. Moreover, there is no indication from the competent medical evidence that there is any relationship between the Veteran's current diagnoses and his active duty service. Direct service connection is not available because the Veteran's service treatment records do not mention a diagnosis of diabetes during or for over a year after service. As such, this discussion will focus primarily on service connection secondary to the Veteran's service connected disorders. The Veteran's February 2010 VA examiner opined that the Veteran's diabetes was less likely caused by or related to his service, including his hypertension. He concluded that the Veteran's diabetes was genetic, rather than a result of service-connected hypertension. In so concluding, the examiner noted that hypertension is not a known risk factor for diabetes. The examiner further noted that the Veteran fits the demographic profile for genetically developed type II diabetes, given his family history for the disease. While the examiner did not expressly address whether the Veteran's diabetes could have been aggravated by his service or service connected disabilities, the examiner was clear that the Veteran's diabetes is a result of his family history and genetic predisposition, and that it was much less likely that his hypertension treatment played a role. The Board finds that this examination was adequate for evaluation purposes. The examiner physically examined and interviewed the Veteran, reviewed the claims file, and there is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any material fact. The Board notes academic material submitted in September and October 2009 that suggest a correlation between thiazide drugs for hypertension and increased blood glucose. Such studies are probative, and do support the Veteran's appeal. However, the Board finds that these studies, which are general in nature, are outweighed by the opinions provided by VA examiner. Specifically, unlike these studies, the VA examiner had the ability to interview the Veteran, review his medical records, and make specific conclusions based on the Veteran's specific history. In fact, the VA examiner explicitly discounted the chance that the Veteran's treatment for hypertension played a role in his developing diabetes. Therefore, greater weight must be placed on the VA examiner's opinion. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his diabetes to his active service, and specifically the thiazide medications prescribed for his hypertension. The United States Court of Appeals for the Federal Circuit has held that "[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). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of diabetes. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's unsubstantiated statements linking his diabetes to his hypertension are found to lack competency. Unfortunately, because the Veteran's diabetes cannot be attributed to his service, particularly his service-connected hypertension, entitlement to service connection for this condition is denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is seeking a compensable rating for hypertension. He is currently rated under 38 C.F.R. § 4.104, DC 7101 (addressing hypertension). Under DC 7101: * A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation 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 rating is warranted for diastolic pressure predominantly 120 or more. * A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101 (2017). Based on the evidence of record, the Board determines that a 10 percent rating is warranted for the period on appeal. Indeed, while his blood pressure readings have not necessarily indicated a history of a diastolic pressure of predominantly 100 mm Hg or more, the Veteran does take losartan to control his blood pressure. Given that this drug, if effective, controls his hypertension, it follows that his readings would be much higher if he was not taking his medication. Therefore, when resolving all doubt in the Veteran's favor, a 10 percent rating is warranted on this basis. However, a rating in excess of 10 percent is not warranted for the Veteran's hypertension. The results of several readings indicate blood pressure well below that required for a compensable rating. At his November 2009 VA examination, the examiner noted that the Veteran had been started on HCTZ in 2006, and that since then, his blood pressure has been under control. This is substantiated by several office visit records. Finally, while the examiner did not provide a response to a question asking whether the Veteran has a history of a diastolic blood pressure elevation to predominantly 100 or more, there is no indication that the examiner had noted a positive response to this question. Further, the Veteran's August 2017 VA examiner noted current average blood pressure readings of 138/90. Throughout all of these readings, the Veteran never demonstrated diastolic blood pressure of 110 or more or a systolic blood pressure of 200 or more. Importantly, even if she had exhibited those readings on occasion, such a finding would not alter the Board's conclusion that the Veteran has not demonstrated a predominant diastolic blood pressure of 110 or more or systolic pressure of 200 or more. Therefore, as the Veteran did not exhibit the requirements for a 20 percent rating, a rating in excess of 10 percent is not warranted. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his hypertension is worse than the rating he currently receives. Specifically, the Veteran asserts that his diagnosis of diabetes should be taken into account in assigning a rating for hypertension. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Board recognizes the Veteran's assertion that the rating criteria should address factors other than systolic and diastolic readings. Unfortunately, however, DC 7101 is the only appropriate diagnostic code, and the Board does not have the authority to change the criteria under which the Veteran's disorder is rated. Moreover, as stated by the Veteran's examiner, there is no known etiological link between diabetes and hypertension. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the Board has explained why the Veteran's relevant symptoms do not merit ratings greater than the ones assigned. As such, the Veteran's symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Based on the evidence of record, the Board determines that a 10 percent rating is warranted based on the nature of the Veteran's symptoms. However, a rating in excess of 10 percent is not warranted. ORDER New and material evidence having been submitted, the application to reopen a previously denied claim of service connection for diabetes is granted, and the claim is reopened. Entitlement to service connection for diabetes, to include as due to service-connected hypertension, is denied. A 10 percent rating, but no more, for hypertension, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs