Citation Nr: 18142011 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 18-02 157 DATE: October 12, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for obstructive sleep apnea is reopened. Entitlement to a disability rating higher than 10 percent for allergic rhinitis is denied. Entitlement to a disability rating higher than 20 for diabetes mellitus, type II (hereinafter, “diabetes”), with erectile dysfunction, is denied. Entitlement to a disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy of the right lower extremity is granted. Entitlement to a disability rating of 20 percent, but no higher, for diabetic peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for a urinary disability, claimed as neurogenic bladder and a voiding dysfunction, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include a major depressive disorder, is remanded. FINDINGS OF FACT 1. A January 2014 rating decision denied the Veteran’s claim for entitlement to service connection for obstructive sleep apnea. 2. Evidence received since the January 2014 rating decision includes medical records of a sleep study. This evidence was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. At no time during the appellate period has the Veteran’s diabetes with erectile dysfunction required physician-prescribed regulation of activities. 4. The Veteran’s peripheral neuropathy of the right lower extremity has been manifested by moderate constant pain, paresthesias and/or dysesthesias, and numbness. 5. The Veteran’s peripheral neuropathy of the left lower extremity has been manifested by moderate constant pain, paresthesias and/or dysesthesias, and numbness. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for obstructive sleep apnea has been submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for a disability rating higher than 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.97, Diagnostic Code 6522. 3. The criteria for a disability rating higher than 20 percent for diabetes with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.119, Diagnostic Code 7913. 4. The criteria for a disability rating of 20 percent, but no higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating of 20 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1968 to July 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2016 and July 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105, 7266; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, a January 2014 rating decision denied the Veteran’s claim of entitlement to service connection for obstructive sleep apnea. As this decision was not challenged, it has become final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In November 2015, the Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for obstructive sleep apnea. Evidence associated with the claims file after the January 2014 rating decision includes May 2016 private treatment records. The Board finds these medical records to be sufficient new and material evidence to reopen the Veteran’s claim. The evidence is material because it relates to unestablished facts necessary to establish the Veteran’s claim. Additionally, the evidence is neither cumulative nor redundant, as this evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran’s claim for obstructive sleep apnea is reopened. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Allergic Rhinitis The Veteran contends that he is entitled to a rating higher than 10 percent for his service-connected allergic rhinitis. The Veteran’s allergic rhinitis is rated under Diagnostic Code (DC) 6522. 38 C.F.R. § 4.97, DC 6522. Under this code, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passages on both sides, or complete obstruction on one side. A maximum 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. Id. On April 2016 VA examination, the Veteran was provided a diagnosis of allergic rhinitis. There was greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis. There was also complete obstruction on both sides due to rhinitis, as well as permanent hypertrophy of the nasal turbinates. There were no nasal polyps. Relevant treatment records also do not show any nasal polyps. In light of the foregoing, the Board finds that a disability rating higher than 10 percent is not warranted. Although the Veteran presented with greater than 50 percent obstruction on both sides, there was no evidence of nasal polyps. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Thus, entitlement to a disability rating is excess of 10 percent for allergic rhinitis is not warranted. Diabetes The Veteran contends that he is entitled to a disability rating higher than 20 percent for his service-connected diabetes with erectile dysfunction. The Veteran’s diabetes is evaluated under 38 C.F.R. § 4.119, DC 7913. Under this code, a 20 percent rating is warranted for diabetes mellitus that requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes mellitus that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice per month visits to a diabetic care provider, plus complications that would be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, restricted diet, and regulation of activities with 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, DC 7913. Compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating, but non-compensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note (1). To demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Id. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 rating)). On December 2015 VA examination, the Veteran was provided a diagnosis of diabetes mellitus, type II. He was prescribed oral hypoglycemic agents(s) for treatment of his diabetes. Regulation of activities was not noted to be a part of medical management of the diabetes. The Veteran visited his diabetic care provider for episodes of ketoacidosis less than two times per month. There were no reported hospitalizations for episodes of ketoacidosis within the last 12 months from the date of examination. Further, in a June 2016 VA examination, the Veteran was provided a diagnosis of erectile dysfunction, which was associated with his diabetes. He was unable to achieve an erection sufficient for penetration and ejaculation without medication, and he had not used medications for treatment of his erectile dysfunction. The Veteran was not physically examined, per his request, but he reported normal anatomy. Also of record are VA treatment records, which reflect treatment for diabetes. However, there is no indication that the Veteran is being prescribed insulin, or regulation of activities to control his diabetes. Finally, of record are the Veteran’s lay statements. In his August 2016 notice of disagreement, the Veteran, a physician, claimed that he injected himself with insulin twice daily to keep his blood sugar level in control. He also claimed to have a restricted diet with regulation of activities. The Board finds that the Veteran is not entitled to a rating higher than 20 percent for his service-connected diabetes with erectile dysfunction. The medical evidence of record reflects that the Veteran required oral hypoglycemic agent(s) to treat his diabetes. 38 C.F.R. § 4.119, DC 7913. Although the Veteran maintained that he injected himself with insulin and had a regulation of activities, this is not corroborated by the medical evidence of record. Specifically, the December 2015 VA examination and the VA medical records do not reflect treatment of insulin or regulation of both occupational and recreational activities. Further, a separate compensable evaluation is not warranted for erectile dysfunction, as there is no evidence of penile deformity. See 38 C.F.R. § 4.115b, DC 7522. In other words, the VA examination report and VA medical records is the most probative evidence as to whether the Veteran requires insulin and regulation of activities to control his diabetes. Although the Veteran is competent as a doctor to report that he uses insulin and regulation of activities—this is not corroborated by his treatment records. Moreover, his reports are self-interested statements and are inconsistent with the other medical evidence of record. As to his statements that he requires injections of insulin and regulation of activities, the Board finds these statements lack credibility and are given no probative weight. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Thus, entitlement to a disability rating is excess of 20 percent for diabetes with erectile dysfunction is not warranted. Peripheral Neuropathy of the Bilateral Lower Extremities The Veteran contends that he is entitled to disability ratings higher than 10 percent for peripheral neuropathy of the bilateral lower extremities. The Veteran’s peripheral neuropathy is rated under DC 8520, for incomplete paralysis of the sciatic nerve. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. In rating diseases of the peripheral nerves, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. On June 2016 VAX examination, the Veteran was diagnosed with diabetic neuropathy associated with his diabetes. He had constant moderate pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. On strength testing, he had less than normal strength in his knee extension and flexion, bilaterally, and no movement against resistance in his ankle plantar flexion and dorsiflexion, bilaterally. Deep tendon reflexes were normal. Light touch/monofilament testing was normal. The VA examination found there to be mild incomplete paralysis of the sciatic nerve, bilaterally. Also of record are the Veteran’s lay statements. In his August 2016 notice of disagreement, the Veteran reported that his peripheral neuropathy in his lower extremities caused severe pain that made him walk with a deformity. Based on the foregoing, the Board finds all reasonable doubt in the Veteran’s favor and assigns a disability rating of 20 percent, but no higher, for his peripheral neuropathy in each lower extremity. The Veteran has competently and credibly reported pain, and the June 2016 VA examination found constant moderate pain, paresthesias and/or dysesthesias, with numbness in both lower extremities to be sufficient to warrant a 20 percent rate for each lower extremity. 38 C.F.R. § 4.124a, DC 8520. The Board finds that the medical evidence of record does not support a 40 percent rating, because the diagnostic testing during the June 2016 VA examination showed normal strength in the Veteran’s knees and normal deep tendon reflexes. The preponderance of the evidence is against a rating higher than 20 percent in each lower extremity. The Veteran’s symptoms in each lower extremity have been wholly sensory, and they do not reach a level of moderately severe, incomplete paralysis in each lower extremity. In sum, the Board finds that the preponderance of the evidence supports a rating of 20 percent, but no higher, for peripheral neuropathy in each lower extremity. REASONS FOR REMAND For the reasons discussed below, the Board finds that the issues of entitlement to service connection for obstructive sleep apnea, asthma, a urinary disability, and an acquired psychiatric disorder, must be remanded for further development, and to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. Obstructive Sleep Apnea The Veteran maintains that he is entitled to service connection for obstructive sleep apnea, to include as secondary to his service-connected diabetes. The Board notes that the Veteran has not been provided a VA examination for this disability. The Veteran was diagnosed with obstructive sleep apnea in May 2016, according to private medical treatment records submitted by the Veteran. Also of record is a May 2016 letter from the Veteran’s private physician. The physician indicated that it was as likely as not that the Veteran’s sleep apnea was a result of military service. The Board notes that this opinion did not provide a rationale. Further, there was no indication that the Veteran’s service treatment records were reviewed. Upon review of the Veteran’s service treatment records, there is no indication of a diagnosis of obstructive sleep apnea. Although the Veteran reported that he had frequent trouble sleeping in his October 1968 enlistment report of medical history, he was not found to have a sleeping disorder after his enlistment examination. Further, the Veteran’s representative, in the September 2018 hearing brief, cited to medical literature that supports a relationship between obstructive sleep apnea and diabetes, independent of other factors. As the Veteran has a current diagnosis of obstructive sleep apnea, and as there are indications in the record of a possible nexus, the Board finds that an opinion regarding direct and secondary service connection is warranted. Asthma The Veteran maintains that he is entitled to service connection for asthma, to include as secondary to his service-connected diabetes. The Veteran maintains that his asthma began in service and that he reported shortness of breath in service. The Board notes that the Veteran has not been provided a VA examination for this disability. Additionally, the Veteran reported on his October 1968 enlistment examination that he had shortness of breath. However, he was not found to have asthma on his enlistment examination. The Veteran claimed in his August 2016 notice of disagreement that while stationed in Vietnam, he was exposed to smoke, vehicle exhaust fumes, and other fuels, solvents, industrial pollution, and sand dust. The Veteran’s VA treatment records reflects a current diagnosis of, and treatment for, asthma. However, there is no indication of whether this asthma is related to his service-connected diabetes. The Veteran’s representative claimed in the September 2018 hearing brief that in addition to direct service connection, secondary service connection may be warranted, as there is medical literature supporting a connection between diabetes and asthma. Further, the Veteran’s private physician in a May 2016 letter indicated a nexus between the Veteran’s asthma and his military service. However, as previously discussed, this opinion contains no rationale, and is therefore afforded little probative weight. As the Veteran has a current diagnosis of asthma, and as there are indications of a possible nexus, the Board finds that an opinion regarding direct and secondary service connection is warranted. Urinary Disability The Veteran maintains that he is entitled to service connection for a urinary disability, claimed as neurogenic bladder and a voiding dysfunction. The Veteran contends his urinary disability is secondary to his service-connected diabetes. Upon review of the service treatment records, there is no indication of a urinary disability in service, nor does that Veteran allege that he had such a disability in service. The Veteran was afforded a VA examination in June 2016, where he was provided a diagnosis of benign prostate hypertrophy. He was not found to have a diagnosis of neurogenic bladder. The examiner found that the benign prostate hypertrophy was the cause of the Veteran’s voiding dysfunction. However, there was no indication of whether this was caused by the Veteran’s service-connected diabetes. The Board notes that once VA undertakes the effort to provide an examination, or obtain an opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As the June 2016 VA examination did not provide a secondary service-connection opinion, a remand is warranted to obtain such an opinion. Acquired Psychiatric Disorder Finally, the Veteran maintains that he is entitled to service connection for an acquired psychiatric disorder, to include a major depressive disorder—to include as secondary to his service-connected peripheral neuropathy. The Board notes that VA treatment records reflect a diagnosis of major depressive disorder and anxiety. The Veteran does not appear to have been provided a VA psychiatric examination. A review of the service treatment records reflects the Veteran not having any psychiatric disabilities upon October 1968 enlistment examination. However, there was also an indication that the Veteran was under psychiatric care up to a few months prior to enlistment. Thus, indicating the existence of a possible preexisting condition. Also of record is a May 2016 letter from the Veteran’s private physician. He indicated he had treated the Veteran with traumatic experiences including combat experiences. However, there was no indication that the Veteran’s service treatment records were reviewed. Further, the Board finds that this statement is not sufficient as an opinion, as there was no nexus. As the Veteran has a current diagnosis of an acquired psychiatric disorder, and as there is evidence of record of a possible nexus, the Board finds that an opinion is warranted. Accordingly, these matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Forward the Veteran’s electronic claims file to appropriate clinicians for examinations and opinions as to the nature and etiology of the Veteran’s obstructive sleep apnea, asthma, urinary disabilities, and an acquired psychiatric disorder, to include major depressive disorder. It is left to the discretion of the examiner(s) whether to examine the Veteran. Following the review of the claims file, the examiner should identify any currently diagnosed obstructive sleep apnea, asthma, urinary disability, and an acquired psychiatric disorder, to include major depressive disorder, and provide opinions on the following: a) Regarding obstructive sleep apnea, whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed obstructive sleep apnea is related to the reports of frequent trouble sleeping in service. Further, whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed obstructive sleep apnea has been caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. b) Regarding asthma, whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed asthma is related to the reports of shortness of breath, and exposure to smoke, vehicle exhaust fumes, other fuels, solvents, industrial pollution, and sand dust in service. Further, whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed asthma has been caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. c) Regarding a urinary disability, identify any currently diagnosed urinary disability. Opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed urinary disability has been caused OR aggravated by the Veteran’s service-connected diabetes mellitus, type II. d) Regarding major depressive disorder, whether the Veteran had an acquired psychiatric disorder that clearly and unmistakably existed prior to service, and if so, whether this disability was not aggravated beyond its natural progression by service. i. If no preexisting condition was found, whether it is at least as likely as not (a 50 percent probability or greater) that any currently diagnosed acquired psychiatric disorder is due to service. ii. Whether any currently diagnosed acquired psychiatric disorder has been caused OR aggravated by the Veteran’s service-connected peripheral neuropathy. A complete rationale for all opinions should be provided. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Angeline DeChiara, Associate Counsel