Citation Nr: 18139944 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 15-36 003 DATE: October 1, 2018 ORDER Entitlement to an initial compensable rating for hypertension is denied. Entitlement to a rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction is denied. Entitlement to an effective date prior to May 6, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for sleep apnea, including as secondary to PTSD is remanded. Entitlement to service connection for a gastrointestinal condition to include acid reflux and colon polyps, including as secondary to PTSD is remanded. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension is not manifested by diastolic pressure predominantly 100 or more; by systolic pressure predominantly 160 or more; or by a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. 2. The Veteran’s service-connected type II diabetes mellitus is manifested by the need for oral hypoglycemic agents and a restricted diet; erectile dysfunction is not manifested by deformity of the penis with the loss of erectile power. 3. On May 6, 2011, the Veteran submitted an informal claim for entitlement to service connection for PTSD. 4. The RO awarded service connection for PTSD in an August 2012 rating decision and assigned a 30 percent disability rating with an effective date of May 6, 2011, the date the informal claim for PTSD was received. 5. Prior to May 6, 2011, VA did not receive or otherwise possess any document that can reasonably be construed as a formal or informal claim for VA benefits for PTSD. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2018). 2. The criteria for a rating in excess of 20 percent rating for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. 3.102, 4.1, 4.7, 4.119, Diagnostic Code 7913 (2018). 3. The criteria for an effective date prior to May 6, 2011, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, the Veteran submitted a VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative dated in November 2016 which was executed in favor of Disabled American Veterans. This document revoked a prior VA Form 21-22 which had been executed in favor of John S. Berry, Attorney at Law. As such, the Veteran’s current representative is Disabled American Veterans as noted above. Additional VA treatment reports and VA examination reports were associated with the claims file after the issuance of statements of the case (SOCs) dated in September 2015. The Veteran’s representative submitted a waiver of review of the evidence by the Agency of Original Jurisdiction in September 2018. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertension Historically, the Veteran submitted a claim for service connection for hypertension in June 2013. In a March 2014 rating decision, the Veteran was granted service connection for hypertension and awarded a noncompensable rating effective June 3, 2013. The Veteran disagreed with the rating assigned and this appeal ensued. The Veteran’s service connected hypertension is rated as noncompensable under Diagnostic Code 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). 38 C.F.R. § 4.104. Under Diagnostic Code 7101, a 10 percent rating is warranted where the diastolic pressure is predominantly 100 or more; when the systolic pressure predominantly 160 or more; or when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is warranted where the diastolic pressure is predominantly 110 or more, or the systolic pressure is predominantly 200 or more. A 40 percent disability rating is warranted for diastolic pressure that is predominantly 120 or more. Finally, a 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. At a February 2014 VA examination, the Veteran’s blood pressure was recorded as 148/108, 145/82, and 140/80. The examiner reported that the Veteran does not have a history of diastolic blood pressure elevated to predominantly 100 or more. The Veteran’s hypertension did not have any impact on his ability to work. VA outpatient treatment reflect a diagnosis of hypertension as early as October 2005 and the Veteran was reported to take Losartan with good control. The records dated through September 2017 reflect that the Veteran’s systolic blood pressure was 150 on one occasion in November 2014 and his diastolic pressure was no higher than 71 at any time. The systolic blood pressure was under 140 at all other times during the period from 2012 to 2017 and under 71 for the same time period. He was reported to take Losartan for his blood pressure and his target blood pressure was 140/90. The Board notes that words such as predominantly are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Regardless, a basic understanding of predominant would suggest that the diastolic pressure was above a certain level more often than it was below it. Having reviewed the evidence as reported above, the Board has determined that the Veteran’s service-connected hypertension does not warrant a compensable rating at any time during the pendency of the appeal. The Veteran does not have a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. During the pendency of the appeal the Veteran’s systolic pressure was no higher than 150 on one occasion and the diastolic pressure was no higher than 108 on one occasion (at the VA examination). At all other times the systolic pressure was under 140 and the diastolic pressure was no higher than 82 (at the VA examination). The records reflect that the Veteran was taking Losartan for his blood pressure during the pendency of the appeal. However, the records do not reflect that he had a history of diastolic pressure predominantly 100 or more and the VA examiner confirmed that finding. At no time has the Veteran’s systolic pressure been 160 and the diastolic pressure was predominantly under 100. As such, it cannot be said that he had a history of diastolic pressure that was predominantly greater than 100 or a systolic pressure that was predominantly greater than 160. Accordingly, the Board finds that the criteria for a compensable rating have not been met, and the Veteran’s claim is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Diabetes Mellitus with Erectile Dysfunction Historically, the Veteran submitted a claim for service connection for erectile dysfunction in June 2013. In a March 2014 rating decision, a 20 percent rating was continued for diabetes mellitus and a noncompensable rating for erectile dysfunction was included in the diabetes mellitus rating as a complication of diabetes. The Veteran disagreed with the decision and indicated that he believed that the claims should be separately rated. The Veteran’s diabetes mellitus is rated 20 percent under 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). The 20 percent rating contemplates diabetes mellitus requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is assigned for the requirement of insulin, a restricted diet, and regulation of activities. A 60 percent rating is assigned for the requirements of a 40 percent rating and, in addition, episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned for the requirements of a 40 percent evaluation, and in addition, episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation under Diagnostic Code 7913. Noncompensable complications are deemed to be part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7522, a 20 percent rating is warranted for deformity of the penis with the loss of erectile power. This is the only schedular rating provided under this diagnostic code. The Board notes that, in every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that no other schedular criteria are applicable to erectile dysfunction. At a February 2014 VA examination, the Veteran was diagnosed with erectile dysfunction. The etiology of the erectile dysfunction was reported to be diabetes mellitus. The Veteran was reported to be unable to achieve an erection sufficient for penetration and ejaculation with or without medication. The examiner did not diagnose deformity of the penis. The examiner reported that the Veteran’s erectile dysfunction did not have an impact on his ability to work. A review of the Veteran’s VA outpatient treatment reports reflects that the Veteran was prescribed oral Glipizide for diabetes mellitus when the Veteran filed his claim. In June 2013, the Veteran reported that he went to the gym four times a week. In February 2013, oral Metformin was added to the Veteran’s medication regime. In June 2014, he was counseled on his diet. Having reviewed the evidence as reported above, the Board has determined that the Veteran’s service-connected diabetes mellitus with erectile dysfunction does not warrant a rating in excess of 20 percent at any time during the pendency of the appeal. Assignment of a rating higher than 20 percent for diabetes mellitus requires insulin usage, restricted diet, and regulation of activities. In this case, there is no evidence that the Veteran’s diabetes mellitus required the use of insulin or the regulation of activities. In fact, he exercised four times per week. Additionally, there is no evidence of any episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice monthly visits to a diabetic care provider. As such, there is no basis upon which to award a rating in excess of 20 percent. With regard to erectile dysfunction, the Veteran was diagnosed with erectile dysfunction but he did not have any deformity of the penis to warrant a compensable rating pursuant to Diagnostic Code 7522. Pursuant to Diagnostic Code 7913, noncompensable complications of diabetes mellitus are deemed to be part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913. In this case, as the Veteran’s erectile dysfunction does not warrant a compensable rating, the disability is most appropriately rated as a part of the diabetic process. In sum, the Veteran’s diabetes mellitus with erectile dysfunction does not warrant a rating in excess of 20 percent at any time during the pendency of the appeal. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Earlier Effective Date - PTSD The Veteran submitted a VA Form 21-4138 received on May 6, 2011, and indicated the he desired to file a claim for service connection for PTSD. The Veteran was granted service connection for PTSD in an August 2012 rating decision, and awarded a 30 percent rating effective May 6, 2011. The Veteran’s representative at the time submitted a notice of disagreement and disagreed with the effective date for the grant of service connection for PTSD. Under applicable criteria, the effective date of an award of compensation based on an original claim (received beyond one year after service discharge) or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date for an award of direct service connection (received more than a year after discharge) will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). In May 2011, more than forty years after separating from service, the Veteran first filed a claim for PTSD. As noted, the Veteran was granted service connection for PTSD and assigned a 30 percent rating effective May 6, 2011, the date he filed an informal claim for service connection for PTSD. The Veteran disagreed with the rating and effective date assigned. No earlier document is of record that might be interpreted as an informal claim for a psychiatric disability. Although the Veteran submitted various informal claims for benefits prior to the May 2011 informal claim filed for PTSD, none of the earlier filed informal claims for benefits specifically included a request for service connection for a psychiatric disorder. Specifically, VA Forms 21-4138 received in February 2002, May 2002, September 2003, and December 2009 did not include reference to a psychiatric disability. A complete claim must identify the benefit sought. See 38 C.F.R. § 3.160. Here, the Veteran’s VA Forms 21-4138 filed prior to May 6, 2011, specifically included claims for benefits other than a psychiatric disability. The Veteran did not specifically raise a formal or informal claim for PTSD until he submitted the VA Form 21-4138 on May 6, 2011, and indicated that he was claiming entitlement to service connection for PTSD. As such, there is no evidence or allegation suggesting that he tried to file for service connection for PTSD prior to May 6, 2011. There is similarly no indication that the Veteran ever filed a claim within a year of separation. As noted, the Veteran separated from service in 1969 and his claim for service connection for PTSD was not received until 2011. As discussed, no earlier document can be construed as a formal or informal claim. VA regulations direct that effective date is the latter of the date of receipt of the claim and the date entitlement arose. It is clear in the regulations that service connection for an original claim shall not be earlier than the date of receipt of the application. In this case, the earliest date an informal claim for benefits was received was on May 6, 2011, the effective date of service connection. As such, the criteria for an earlier effective date for the grant of service connection for PTSD have not been met, and the Veteran’s claim is accordingly denied. Duty to Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA examinations in this case have been undertaken with regard to the claims for hypertension and erectile dysfunction. The Veteran did not indicate that his diabetes mellitus had increased in severity when he submitted the claim for service connection for erectile dysfunction. Regarding records, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records exist and all pertinent records have been obtained. REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the remaining claims can be reached. Sleep Apnea and Gastrointestinal Condition The Veteran was afforded a VA examination in February 2014 at which time an examiner diagnosed GERD, colonic polyps status post polypectomy, and obstructive sleep apnea and opined that GERD, colonic polyps, and obstructive sleep apnea are less likely as not due to PTSD. The examiner provided a rationale to support the conclusions. Unfortunately, the examiner did not address whether any of the diagnosed disabilities were aggravated by the service-connected PTSD. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, an addendum opinion should be obtained. PTSD and TDIU The Veteran’s representative at the time submitted a statement in January 2016 and indicated that the Veteran should be afforded a current examination to determine the severity of his PTSD. The Veteran was last afforded a VA examination to assess his claim for PTSD in July 2012, more than six years ago. In light of the statement requesting a current examination as well as the amount of time which has passed since the Veteran’s last examination, a current examination should be obtained. The TDIU issue is “inextricably intertwined” with the resolution of the increased rating claim for PTSD, therefore, the AOJ must reconsider this claim prior to adjudication of the Veteran’s TDIU claim by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to the VA examiner who conducted the February 2014 VA examination or another examiner with appropriate expertise for an opinion as to the etiology of the claimed GERD, colonic polyps, and obstructive sleep apnea. The examiner should review the claims file prior to rendering an opinion. If an opinion cannot be provided without an examination, one should be provided. The examiner should provide an opinion as to whether the Veteran’s GERD, colonic polyps, and obstructive sleep apnea were aggravated by his service-connected PTSD (meaning that GERD, colonic polyps, and obstructive sleep apnea were permanently worsened by the service-connected PTSD, beyond the natural progression of the conditions.) If it is found that the service-connected PTSD aggravated GERD, colonic polyps, and/or obstructive sleep apnea, the examiner should state to what degree. A complete rationale should be included for any conclusion reached. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his PTSD. The examiner should also discuss any findings pertinent to any functional or occupational limitation and offer an opinion as to the extent of such limitations. 3. Then, readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel