Citation Nr: 18142302 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-11 447 DATE: October 15, 2018 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disability is granted. Entitlement to a compensable rating for erectile dysfunction is dismissed. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder, anxiety disorder, and posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 30 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. In a June 2009 decision, the Board denied service connection for an acquired psychiatric disability directly related to service and as secondary to a service-connected disability. 2. Evidence added to the record since the June 2009 decision relates to an unestablished fact and raises a reasonable possibility of substantiating the service connection claim for an acquired psychiatric disability. 3. Prior to the promulgation of a final decision by the Board, the Veteran indicated during the March 2017 video conference hearing that he wished to withdraw his claim for entitlement to a compensable rating for erectile dysfunction. 4. During the appeal period, the Veteran’s diabetes mellitus, type II has required insulin and a restricted diet, but has not required regulation of activities. CONCLUSIONS OF LAW 1. The Board’s June 2009 decision denying the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5108 (2002); 38 C.F.R. § 3.156 (a) (2018). 3. The criteria for withdrawal of the appeal of the claim of entitlement to a compensable rating for erectile dysfunction have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2018). 4. The criteria for a rating in excess of 20 percent for service-connected diabetes mellitus, type II have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.119, Diagnostic Code 7913 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to September 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also perfected an appeal for an earlier effective date for the grant of a total rating for compensation purposes based on unemployability due to service-connected disabilities (TDIU). A February 2017 rating decision granted the claim in full, so the matter is not before the Board. The Veteran initially provided testimony before a Veterans Law Judge (VLJ) in November 2015. A second video conference hearing was held in March 2017 before a different VLJ and during this hearing the Veteran’s representative waived the Veteran’s right to a hearing with third member for the panel. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). Transcripts of these hearings are of record. During the March 2017 hearing, the VLJ agreed to keep the record open for 60 days to allow the Veteran and his representative time to submit additional evidence. As is reflected on the first page of this decision, the Board has recharacterized the issue relating to a psychiatric disability. In this regard, the Court of Appeals for Veteran Claims (Court) has held that a claim for service connection for a psychiatric disorder encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In reconciling these holdings, the Court held that when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, “the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim ‘based upon distinctly diagnosed diseases or injuries’ or whether it is evidence tending to substantiate an element of a previously adjudicated matter.” Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Here, the Board denied service connection for an acquired psychiatric disability in June 2009. The Veteran filed a “new” claim for service connection for PTSD. Although the Board’s denial specifically denied service connection for depression and dysthymic disorder, the analysis included a discussion of PTSD and noted the disability did not meet the criteria for a diagnosis. Since the past claim was broadened to encompass to consider other diagnoses, the current issue is not an original claim and is appropriately identified as a claim that requires reopening based on the receipt of new and material evidence. In May 2018, the Veteran’s representative waived initial AOJ consideration for all documents that have not been previously reviewed by the AOJ. 1. Whether new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disability Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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 (a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The June 2009 Board decision denied the claim for service connection for a psychiatric disorder essentially based on evidence that the Veteran did not meet the criteria for PTSD, a mental health disorder was not manifested in service, and depression and dysthymic disorder were diagnosed until many years after service and were not secondary to the service-connected diabetes mellitus. Newly submitted evidence includes a September 2010 diagnosis of PTSD. See CAPRI records received in March 2014. Considering the diagnosis and his reported in-service stressors the evidence collectively satisfies the low threshold requirements for new and material evidence. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Consequently, the claim is reopened. Increased Rating 2. Entitlement to a compensable rating for erectile dysfunction The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2018). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The March 2017 hearing transcript shows that the VLJ noted the Veteran wanted to withdraw the appeal for a compensable rating for erectile dysfunction. His representative confirmed his desire to withdraw the appeal by stating “that is correct” twice. The VLJ also listed the issues that were still on appeal, which did not include erectile dysfunction, and asked if the issues were correctly identified. The representative confirmed that the issues were correct. The Veteran was present for the exchange and he did not expression any disagreement with the withdrawal. The Board finds that the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 20.204 (2018). Hence, there is no allegations of errors of fact or law for appellate consideration with respect to that claim. Thus, the Board does not have jurisdiction to review the appeal as to this matter and it is dismissed. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2018). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the entire appeal period, the Veteran’s service-connected diabetes mellitus is rated 20 percent disabling under Diagnostic Code 7913 of 38 C.F.R. § 4.119. Under Diagnostic Code 7913, a 20 percent disability rating is warranted where the disorder requires insulin and a restricted diet, or requires an oral hypoglycemic agent and a restricted diet. A 40 percent rating is awarded when diabetes mellitus requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is for application when the disorder requires insulin, a restricted diet, and regulation of activities with 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 maximum 100 percent rating is warranted where the disorder requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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, Diagnostic Code 7913. 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). Because of the successive nature of the rating criteria for diabetes, e.g., the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 40 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. The Veteran’s diabetes mellitus requires insulin and a restricted diet. To warrant a higher rating, the Veteran’s diabetes mellitus must also require regulation of activities. During the November 2015 hearing, the Veteran indicated that doctors told him to avoid strenuous activities. See Hearing Testimony received in November 2015. However, when he testified in March 2017, he denied being told by his doctors that he needed to regulate his activities due to his diabetes. He indicated that any restriction of activity that he was experiencing was due to his hip replacement. VA examinations during the appeal consistently show that he was not restricted in the ability to perform strenuous activities due to his diabetes mellitus. See VA Examination received in January 2011, CAPRI records received in February 2014, and C&P Exam received in May 2015. A January 2015 VA treatment records also shows that he was physically active as much as tolerated to improve BG metabolism and reduce insulin resistance, which also suggests that no restrictions for physical activity were in place. See CAPRI records received in July 2015. As a preponderance of the evidence indicates the Veteran’s diabetes mellitus did not require regulation of activities the criteria for a higher rating are not met. There is no reasonable doubt to be resolved in this case, and this doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (REMAND NEXT PAGE)  REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability. The Board finds that additional development in the form of a VA examination is needed to decide the claim. As noted, a 2010 treatment record indicated that the Veteran had a diagnosis of PTSD. Given his war time service in Vietnam that included fear of hostile enemy action and military occupational specialty of medical specialist a stressor is conceded, so an opinion is needed to determine whether PTSD or any other mental health diagnosis is related to his service. The Board also finds that the June 2017 VA examiner’s opinion is inadequate. In offering an opinion that the Veteran’s depressive disorder was not aggravated by his diabetes mellitus, the psychiatrist stated that based on a review of the records there is no evidence in psychiatric notes that a mental health disorder has been in any way affected by his diabetes mellitus. This an incorrect statement of the facts. A January 2006 treatment record shows that the Veteran reported he would kill himself if he ever lost a leg to diabetes and the clinician stated that the Veteran had a long history of depression that was recently aggravated by the diabetes mellitus and its complications. See CAPRI records received in May 2017. Furthermore, a June 2014 statement from the Veteran shows he reported that worries daily about his diabetes mellitus. See Statement in Support of Claim received in July 2014. Ongoing treatment records should be added to the file. 2. Entitlement to higher ratings for peripheral neuropathy of the bilateral upper and lower extremities is remanded. The Veteran was most recently examined for his bilateral upper and lower extremity peripheral neuropathy in 2015. During the March 2017 video conference hearing, he testified that these disabilities have worsened since the examinations. Accordingly, examinations are needed to determine the current level of severity for these disabilities. See March 2017 Hearing Testimony. Ongoing treatment records should be added to the file. The matters are REMANDED for the following action: 1. Obtain and associate with the file VA treatment records since August 2017. 2. After the additional treatment records are obtained, schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorders. Make the claims file available to the clinician for review. All indicated tests and studies should be accomplished and the findings reported in detail. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. a) Identify/diagnose any psychiatric disorder that presently exists or that has existed during the appeal period. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor to include the Veteran’s conceded in-service stressor associated with his fear of hostile military activity while serving in Vietnam. If a diagnosis of PTSD is not made, reconcile such a finding with the diagnosis of PTSD that was made in September 2010. b) For each psychiatric diagnosis other than PTSD that has been made since 2010, even if it has resolved since then, opine whether it is at least as likely as not (50 percent or better probability) related to an in-service injury, event, or disease. c) Opine whether any of the psychiatric diagnoses is at least as likely as not proximately due to the service-connected diabetes mellitus or its complications or aggravated beyond its natural progression. d) Opine whether any of the psychiatric diagnoses is at least as likely as not aggravated (worsened) by the service-connected diabetes mellitus or its complications. e) The clinician is advised to consider the Veteran’s 2014 statement that he worried daily about his diabetes mellitus and a 2006 record that notes he had a long history of depression aggravated by diabetes mellitus and its complications. 3. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of bilateral upper and lower extremity peripheral neuropathy. The claims file should be made available to the examiner for review. All indicated tests or studies should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability of each extremity under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to peripheral neuropathy for each extremity. The examiner should also discuss the effect of the Veteran’s peripheral neuropathy disabilities on any occupational functioning and activities of daily living. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst