Citation Nr: 18142316 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 17-64 979 DATE: October 15, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for hypertension is reopened. Service connection for metabolic syndrome (also claimed as abdominal obesity and hyperlipidemia) is denied. An increased rating of 20 percent, but no higher, for peripheral neuropathy of the left lower extremity is granted from October 1, 2013. An increased rating of 20 percent, but no higher, for peripheral neuropathy of the right lower extremity is granted from October 1, 2013. REMANDED The issues of entitlement to service connection for a low back disability and hypertension are remanded for additional development. FINDINGS OF FACT 1. A May 2010 rating decision that denied the petition to reopen the previously denied claim of entitlement to service connection for hypertension was not appealed and no new and material evidence was submitted during the appeal period; the decision is final. 2. Some of the evidence received since the May 2010 denial relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for hypertension. 3. The Veteran’s metabolic syndrome developed many years after his separation from service and is not related to service, including his service-connected diabetes mellitus. 4. Throughout the pendency of the appeal, signs and symptoms of peripheral neuropathy of the left lower extremity have most nearly approximated moderate incomplete paralysis of the sciatic nerve. Moderately severe incomplete paralysis of the sciatic nerve has not been shown. 5. Throughout the pendency of the appeal, signs and symptoms of peripheral neuropathy of the right lower extremity have most nearly approximated moderate incomplete paralysis of the sciatic nerve. Moderately severe incomplete paralysis of the sciatic nerve has not been shown. CONCLUSIONS OF LAW 1. The May 2010 rating decision that denied a petition to reopen a previously denied claim of service connection for hypertension is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. New and material evidence has been submitted, and the claim of entitlement to service connection for hypertension is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for metabolic syndrome are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. 4. Since October 1, 2013, the criteria for a rating of 20 percent for peripheral neuropathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. 5. Since October 1, 2013, the criteria for a rating of 20 percent for peripheral neuropathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to August 1970. He was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Pursuant to 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. The Board finds that such evidence has been received regarding the claim of entitlement to service connection for hypertension, as a result, the claim is reopened. SERVICE CONNECTION Veteran’s Contentions The Veteran contends that he is entitled to service connection for metabolic syndrome (also claimed as obesity, abnormal liver function tests, and hyperlipidemia), as secondary to service-connected diabetes. 1. Entitlement to service connection for metabolic syndrome (also claimed as abdominal obesity and hyperlipidemia), to include as secondary to service-connected diabetes mellitus. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R.§ 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). The Board notes that obesity is not a disease per se for VA purposes which warrants entitlement for service connection under 38 U.S.C. §§ 1110. However, obesity has been held to be an “intermediate step” between a service-connected disability that may be connected on a secondary basis under 38 C.F.R. § 3.310(a) (2017). See VAOPGCPREC 1-2017 (January 6, 2017) (noting that the this “intermediate step” under 38 C.F.R. § 3.310(a) (2017) equates to an inquiry into proximate cause requiring a 3-step analysis, namely of (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability.) Symptoms or clinical findings, such as laboratory findings, are not disabilities within the law. Absent evidence of a current disability, a claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service treatment records are absent diagnoses or treatment for metabolic syndrome. Post-service treatment records document that the Veteran was diagnosed with metabolic syndrome. A May 2013 letter by the Veteran’s doctor, Raymond Edwards, notes that the Veteran meets the criteria for an assessment of metabolic syndrome, as he has hypertension, dyslipidemia, impaired plasma glucose, and central obesity. In another letter dated May 2013, the Veteran’s doctor, R. Steven Jones, concludes that due to his diabetes, abdominal obesity, and history of hyperlipidemia, the Veteran fits the criteria of metabolic syndrome. A May 2013 treatment note reports that the Veteran’s hypertension, abnormal liver functions, and diabetic neuropathy could be related to metabolic syndrome, related to diabetes. The Board finds these opinions are speculative in nature and as such are not probative. It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A VA medical opinion was obtained in March 2017. The VA examiner opined that the Veteran’s metabolic syndrome was less likely than not proximately due or the result of the Veteran’s service-connected diabetes mellitus. The examiner explained that, after reviewing medical research and the Veteran’s medical records with two staff endocrinologists, it had been determined that metabolic syndrome is a constellation of risk factors, and not a disease itself, that is typically caused by obesity, genetics, diet, activity, lifestyle, and aging. He further explained that diabetes shares many characteristics of metabolic syndrome, as metabolic syndrome is basically a group of risk factors that can later develop into diabetes mellitus. Per review of the medical literature, these risk factors (obesity, etc.) are the more notable causes leading to metabolic syndrome and therefore it is less likely than not that metabolic syndrome was caused by or related to service-connected diabetes mellitus. The examiner further opined that it was more likely than not that metabolic syndrome was related to other primary risk factors– obesity being the most notable as the criteria for metabolic syndrome do have some correlation with increased obesity following the Veteran’s exit from service. The examiner explained that although metabolic syndrome can be associated with diabetes, the association does not always mean causation. Specifically, in the Veteran’s case, diabetes predated clinical metabolic syndrome and medical research demonstrates that the causes of metabolic syndrome could develop into diabetes but that diabetes was not causative of metabolic syndrome. As for aggravation, the examiner opined that although diabetes and metabolic syndrome share similar risk factors, it would be purely speculative to ascertain aggravation of metabolic syndrome due to clinical diabetes mellitus because there are many other factors that play a role in aggravation or causation of metabolic syndrome. The examiner further referenced that medical literature failed to demonstrate diabetes mellitus as a direct cause of metabolic syndrome and that the literature supported other causes, such as obesity and aging, to be the more likely causes. After review of the record, the Board finds that service connection for metabolic syndrome is not warranted. Turning first to the Veteran’s statements, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of metabolic syndrome, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the probative evidence of record, the Board finds that the negative opinion of the March 2017 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes service treatment records noting no objective findings of metabolic syndrome; post-service treatment records documenting diagnosis of metabolic syndrome, and medical literature finding that metabolic syndrome is a constellation of risk factors, and not a disease itself, that is typically caused by obesity, genetics, diet, activity, lifestyle, and aging and associated with but not caused by diabetes mellitus. See Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no probative medical opinion of record to the contrary. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56. INCREASED RATING Veteran’s Contentions The Veteran contends that ratings higher than those currently assigned are warranted for peripheral neuropathy of both legs. He reports that due to the neuropathy, his legs give way and he has a history of falling. He also has radiating pain and cannot bend or squat. See December 2013 Correspondence, May 2014 Notice of Disagreement, April 2015 Correspondence, and July 2018 Board Hearing Transcript. Although the Veteran contends that the July 2017 VA examination for diabetic neuropathy is inadequate as it did not properly address his diabetic peripheral neuropathy of the upper extremities, the Board notes that only the issue of increased ratings for peripheral neuropathy of the left and right legs are currently on appeal. The Board does not currently have jurisdiction over claims of entitlement to an increased rating for peripheral neuropathy, to include tarsal tunnel syndrome, of the bilateral upper extremities. As for the Veteran’s contention that the examiner did not address the Veteran’s back condition, the Board notes the Veteran was afforded a distinct and separate VA examination for his claim of entitlement to service connection for a low back condition, which is remanded herein. See November 2017 Correspondence. As such, the Board finds the July 2017 VA examination adequate to decide the claim of entitlement to an increased rating for peripheral neuropathy of both legs. See Nieves-Rodriguez, 22 Vet. App. at 302-05; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 1. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling prior to May 2, 2014 and 20 percent disabling thereafter. 2. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling prior to May 2, 2014 and 20 percent disabling thereafter. Disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s peripheral neuropathy of both legs is rated as 10 percent disabling prior to May 2, 2014 and 20 percent disabling thereafter for each leg under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. A 10 percent evaluation is assigned for mild incomplete paralysis, a 20 percent evaluation is assigned for moderate incomplete paralysis, and a 40 percent evaluation is assigned for moderately severe incomplete paralysis. A 60 percent evaluation is assigned for severe incomplete paralysis with marked muscle atrophy and an 80 percent evaluation is assigned with complete paralysis. Id. Words such as “moderate” and “mild” 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At a November 2013 VA examination for diabetic sensory-motor peripheral neuropathy, the Veteran reported intermitted paresthesias, dysesthesias, and numbness of the bilateral arms and legs. He also endorsed subjective weakness and discoordination of both legs. The Veteran reported that Neurontin was ineffective but that Tramadol helped with the pain. The examiner noted that the Veteran had no constant pain, moderate intermittent pain, moderate paresthesias, and mild numbness in the bilateral lower extremities. Although the Veteran had normal strength, he had decreased deep tendon reflexes of both knees and absent reflexes of both ankles and decreased light touch sensation of the lower legs and feet. He had normal position sense and cold sensation but decreased vibration sense of the great toes. The Veteran did not have muscle atrophy and trophic changes. The examiner diagnosed the Veteran with bilateral mild incomplete paralysis of the sciatic nerve. The examiner explained that the Veteran was limited in standing and could walk only short distances and had difficulty climbing and squatting. The Veteran was afforded another VA examination in July 2017. The examiner noted that the Veteran had severe constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness in the bilateral lower extremities. The Veteran had decreased deep tendon reflexes and light touch sensation of the bilateral legs but normal strength. He did not have muscle atrophy but did have trophic change in the form diminished hair on both legs. The examiner diagnosed the Veteran with bilateral moderate incomplete paralysis of the sciatic nerve. He concluded that the Veteran’s diabetic peripheral neuropathy has worsened over the last several years. He explained that the Veteran related that he had fallen several times due to not being able to feel when his feet touch the ground. The examiner also opined that the Veteran’s neuropathy would impact his ability to work as occupational environments that require prolonged walking and standing would be prohibitive. The evidence reflects that the Veteran’s bilateral leg symptoms best approximate moderate incomplete paralysis of the sciatic nerve, warranting a 20 percent rating since October 1, 2013, the date of claim for an increased rating, under Diagnostic Code 8520. The Veteran has consistently reported that he had pain, numbness, and paresthesias of both legs. The November 2013 VA examiner report noted moderate intermittent pain and moderate paresthesias, and mild numbness. It also documented decreased deep tendon reflexes and light tough sensation of the lower leg and decreased vibration sense of the great toe. The July 2017 VA examination report documented severe constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness of both legs. The report also documented decreased deep tendon reflexes and light touch sensation and trophic changes. A rating in excess of 20 percent for radiculopathy of the lower extremities is not warranted because the record lacks evidence that symptoms more closely approximate moderately severe incomplete paralysis. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine condition is remanded. The Veteran contends that he has frequent low back pain due to falls associated with the symptoms of diabetic peripheral neuropathy. Although the Veteran was afforded a VA examination in connection with his low back condition in July 2017, the Board will remand this issue in light of the United States Court of Appeals for the Federal Circuit’s decision in Saunders v. Wilkie, 886 F.3d 1356 (2018). Specifically, the Federal Circuit held that pain alone, when causing functional impairment, may constitute a “disability” for VA compensation purposes, even if the pain is not with an accompanying diagnosis. Id. at 1368. Accordingly, although the VA examination mentioned above may not have produced current diagnoses for the low back, pain impacting this area may be recognized as “disabilities” if such pain causes functional impairment. On remand, the Agency of Original Jurisdiction (AOJ) must afford the Veteran a new VA examination and medical opinion for the low back. In providing this examination and opinion, the VA examiner must provide an etiological opinion regarding pain and continuity of pain if such pain causes functional impairment, even if there are no underlying diagnoses. 2. Entitlement to service connection for hypertension is remanded. The Veteran contends that service connection for hypertension is warranted because the clinical onset of that condition occurred during his active duty service. The Veteran alleges that during service he had severe headaches and nose bleeds due to hypertension but that there are no records of this treatment. The Veteran testified that he began taking hypertension medication during service. He also contends that hypertension is aggravated by his service-connected diabetes. As the medical opinions of record do not address the Veteran’s contentions that he received treatment for hypertension during service, the Board finds that the Veteran should be afforded another examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: 1. Associate any service treatment records with the Veteran’s claims file from the active service period of February 1969 to August 1970. All efforts to obtain records should be documented, and if unavailable, a formal finding should be made. 2. After completing the above action, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any current low back disability. The clinician should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. If the Veteran only reports pain, but there is no diagnosable low back condition, the clinician should indicate whether the Veteran’s low back pain causes functional impairment. (a.) Thereafter, the clinician should then address whether it is at least as likely as not (50 percent probability or more) that any low back condition including only low back pain that causes functional impairment had its onset in, was caused by, or is otherwise related to service, to include as a result of falls associated with service-connected peripheral neuropathy of the lower extremities. (b.) In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, October 1, 2013. (c.) For all opinions rendered, the clinician should provide a complete rationale. If the clinician cannot provide the requested opinion without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of hypertension. The clinician should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. (a.) Thereafter, the clinician should then address whether it is at least as likely as not (50 percent probability or more) that the Veteran’s hypertension had its onset during, or is otherwise related to, his active service. Please comment on the Veteran’s contentions that he had symptoms of hypertension and was treated with medication during service. The clinician must also consider and discuss the Veteran’s conceded exposure to certain herbicide agents, such as Agent Orange, as the National Academy of Sciences Institute of Medicine has concluded that there is “limited or suggestive evidence of an association” between herbicide exposure and hypertension. Please note that a medical opinion which concludes that a disease is not related to herbicide exposure solely because there is no presumption of service connection is inadequate. (b.) The clinician should also address whether is it at least as likely as not that the Veteran’s hypertension was proximately caused or aggravated by his service-connected diabetes mellitus. The clinician should note that this question requires two separate opinions: one for causation and a second for aggravation. The term “aggravation” means a permanent worsening of the disability beyond its natural progression. If aggravation is found then, to the extent possible, the internist should attempt to establish a baseline level of severity of the hypertension prior to aggravation by the diabetes mellitus. (Continued on the next page)   4. After completing the requested actions, and any additional action deemed warranted, readjudicate the Veteran’s claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel