Citation Nr: 18142972 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 14-06 030 DATE: October 17, 2018 ORDER Entitlement to service connection for diabetes is denied. Entitlement to an effective date of March 26, 2014, for the award of service connection for left foot sole scar is granted. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. Entitlement to service connection for left foot ulcers is remanded. Entitlement to an initial rating in excess of 10 percent for left foot sole scar prior to December 1, 2017, and a compensable rating thereafter, is remanded. Entitlement to an effective date prior to September 11, 2012 for the award of a 50 percent rating for bilateral flat feet is remanded. Entitlement to an extraschedular rating for bilateral flat feet is remanded. Entitlement to an initial compensable rating for hepatitis C is remanded. FINDINGS OF FACT 1. The Veteran’s diabetes was not incurred during active duty or within one year of separation, and is not otherwise related to military service. 2. A left foot scar arose from a March 26, 2014 VA surgery for the service-connected flat feet disability, and the claim arose from that surgery by operation as it was for a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes are not met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an effective date of March 26, 2014, for the award of service connection for left foot sole scar are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1973 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2011, April 2013, March 2015, and May 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Board remanded the claim of entitlement to a compensable rating for hepatitis C for further development. A July 2016 Board decision denied the hepatitis C claim, as well as a claim of entitlement to an effective date prior to September 11, 2012 for the award of a 50 percent rating for bilateral flat feet and an extraschedular rating for bilateral flat feet, and remanded the remaining claims on appeal for further development. Subsequently, the Veteran appealed that decision, in part, as to the denied claims, to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Memorandum Decision, the Court set aside the Board’s July 2016 decision and remanded the matters for further proceedings. Notably, during the pendency of this appeal, a September 2017 rating decision decreased the Veteran’s rating for left foot scar from 10 percent to a noncompensable rating. The Veteran did not file a VA Form 21-0958, Notice of Disagreement (NOD), disagreeing with the reduction. To this extent, rating reductions are separate and distinct from increased rating issues. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) (“this is a reduction case, not an increase case”). Hence, an issue concerning the propriety of the reduction is not on appeal before the Board. However, consideration of the increased rating issue will necessarily entail consideration of the rating reduction issue because in looking at the record to determine if a higher rating is warranted, the Board will necessarily be addressing the reduced rating issue. 1. Entitlement to service connection for diabetes. Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic disabilities, including diabetes, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran has not been afforded a VA examination for his claimed diabetes and an opinion as to the etiology of such disease has not otherwise been obtained. In this instance, there is no indication that the Veteran’s diabetes may be associated with his military service or a service-connected disability. Further, the Veteran has not has provided credible evidence of any in-service event, injury or disease, or any competent medical evidence that this condition may be related to any incidence of service or a service-connected disability. Thus, a VA examination with respect to the Veteran’s diabetes is not required. See McLendon, 20 Vet. App. at 83. Regarding the first element of service connection, the Veteran has a current diagnosis of diabetes mellitus, type II. See August 2016 VA treatment record. Accordingly, the first element is established. Turning to the second element, in-service incurrence of a disease or injury, the Veteran does not report, nor do his service treatment records identify any complaints, treatment for, or diagnosis of diabetes or symptoms indicative of the same. Moreover, the April 1975 service separation examination was negative for any finding of diabetes and laboratory testing of his sugar levels was normal. As such, element two is not met, and the claim fails on this basis alone. Regarding the final element, a nexus to service is also not established, as there is no competent evidence of record between the Veteran’s diabetes and military service. To the extent that the Veteran relates his diabetes to service, the Board finds that he is not competent to do so, as the determination as to the etiology of such a disease is a complex medical question that is beyond the competence of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran’s diabetes manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Instead, the first evidence of diabetes is in 1983, approximately 8 years after service. For similar reasons, a nexus through a continuity of symptomatology is not available. See Walker, supra. Accordingly, for reasons outlined above, the preponderance of the evidence is against the claim of entitlement to service connection for diabetes. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. See 38 U.S.C. § 5107(b). 2. Entitlement to an effective date prior to August 12, 2014 for the award of service connection for left foot sole scar. The Veteran seeks an effective date earlier than August 12, 2014 for the award of service connection for his left foot sole scar. He asserts that the effective date should be March 26, 2014, the date he underwent surgery resulting in the scar. See April 2016 Notice of Disagreement. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id. Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Here, the record does not show any formal or informal claim for service connection for scars. Rather, the record reflects that in September 2012, he filed a claim of entitlement to an increased rating for bilateral flat feet. At the August 2014 VA examination, it was first noted that the Veteran had a scar on the sole of his left foot due to recent surgery. Subsequently, a March 2015 rating decision awarded service connection for a left foot sole scar associated with bilateral flat feet and assigned an effective date of August 12, 2014, the date the VA scars examination. The Veteran underwent a sesamoidectomy performed on March 26, 2014. This surgery is recognized as a consequence of his service-connected bilateral flat feet disability. It is not in material dispute that the scar is a result of this surgery. The evidence does not establish when the lesion became a scar post-operatively. Nonetheless, when resolving reasonable doubt in the Veteran’s favor, the Board will find that the date of claim and date entitlement arose appear coincide in this instance with the date of the surgery on March 26, 2014. As such, an earlier effective date is warranted to this extent. This determination is limited to establishing the effective date for the award of service connection. The Board is not decided the question of what disability rating to assign (or should be assigned) for the earlier time period now service-connected. That issue must be addressed by the RO in the first instance. However, to this extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for a left eye disability is remanded. The Veteran indicates that he incurred an additional left eye disability as a result of left eye surgery. A review of the record shows that a pars plana vitrectomy and a retina membrane peel was performed on the Veteran’s left eye on November 2, 2009. Although the Veteran reported improved vision, a January 2010 VA treatment record notes that he exhibited a new inferior tractional-rhegmatogenous retinal detachment that could possibly require surgical repair. Thus, a VA examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for left foot ulcers is remanded. The February 2013 VA examiner indicates a relationship between the Veteran’s foot ulcers and his bilateral flat feet, stating that “[pes planus] also contributes to ulcers of the feet which are a risk to his health as a diabetic.” However, the examiner did not provide any rationale or a clear explanation in support of his opinion. Furthermore, the notes in the treatment records attribute the foot ulcers to diabetes. The Veteran has not yet been afforded a VA examination for this disability and the Board finds that the existing record triggers VA’s duty to provide him with a VA examination and opinion to determine whether or not the foot ulcers are separate disabilities or symptoms of the Veteran’s bilateral flat feet. 3. Entitlement to an initial rating in excess of 10 percent for left foot sole scar prior to December 1, 2017, and a compensable rating thereafter, is remanded This issue is remanded as the Board herein above grants an earlier effective date for the award of service connection for this disability. The RO’s assignment of an initial disability rating for the earlier period will directly impact the issue now before the Board. Moreover, the remaining remanded issues are intertwined to the extent the evidentiary development conducted on remand will likely include evidence pertinent to this issue. 4. Entitlement to an effective date prior to September 11, 2012 for the award of a 50 percent rating for bilateral flat feet is remanded. 5. Entitlement to an extraschedular rating for bilateral flat feet is remanded. As issues 4-5 are related, the Board will address them together. In the February 2018 Memorandum Decision, the Court determined that the Board provided inadequate reasons and bases for declining to refer the Veteran’s bilateral flat feet for extraschedular consideration. Specifically, the Court found that the Board failed to provide reasoning for why the Veteran’s foot ulcers were already contemplated by the rating criteria when, in fact, it is not one of the listed criteria. Additionally, based on the February 2013 VA examination report noting that the Veteran’s foot ulcers were related to his flat feet, the Court indicated that the private treatment of the Veteran’s foot ulcers may be evidence of flat feet symptomatology within the one-year period prior to September 11, 2012 and the Board was required to discuss how this symptom is contemplated by the rating criteria. Thus, these claims are inextricably intertwined with the Veteran’s issue of entitlement to service connection for left foot ulcers remanded herein, and as such, action is deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). 6. Entitlement to an initial compensable rating for hepatitis C is remanded. The Court found that the nature of the statement in the March 2008 private treatment record was not clear from a “plain reading” of the record, as the statement: “[p]atient stated that he continued [sic] stay tired and fatigue[d] which[h] can be attributed to his compensated heart failure or chronic hepatitis C,” could be viewed as a mixture of lay testimony and medical opinion. Since this specific record is necessary to the Board’s analysis, it must be remanded for clarification from Dr. John Adewumi. Any outstanding VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Contact John Adewumi, M.D., and request clarification as to his statement in a March 7, 2008 treatment record in which he noted “[p]atient stated that he continued [sic] stay tired and fatigue[d] which[h] can be attributed to his compensated heart failure or chronic hepatitis C.” He should be asked to clarify whether this statement is simply documenting the Veteran’s own statements or whether it was his (Dr. Adewumi’s) own medical opinion about the etiology of the symptoms, or a mixture of both. If it was Dr. Adewumi’s opinion, he should be asked to identify and explain more explicitly what his medical opinion and underlying rationale is. 4. Then schedule the Veteran for a VA examination to determine the nature and etiology of any left eye disability. The entire claims file should be made available to the examiner. All indicated studies should be performed, and all findings should be reported in detail. (a) Is it at least as likely as not that the Veteran incurred additional disability, to include left eye inferior tractional-rhegmatogenous retinal detachment, as a result of his left eye surgery by VA in November 2009 and any follow up treatment? If so, please identify the additional disabilities. (b) If additional disability exists, is it as least as likely as not that such additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing care? Please thoroughly explain why or why not. (c) If the Veteran has an additional disability caused by the procedure, is it at least as likely as not that this additional disability was reasonably foreseeable as an ordinary risk of the treatment that would be disclosed in connection with the informed consent (primary health care provider explains the reasonably foreseeable risks associated VA treatment or services furnished the Veteran)?? 5. Then schedule the Veteran for a VA examination to determine the nature and etiology of his left foot ulcers. The entire claims file should be made available to the examiner. All indicated studies should be performed, and all findings should be reported in detail. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not that the Veteran’s foot ulcers: (a) are symptoms or complications of bilateral flat feet; (b) are a separate and distinct disabilities apart from bilateral flat feet; (c) had its onset in or is otherwise related to service; (d) are proximately due to his service-connected bilateral flat feet; or (e) have been aggravated (worsened beyond natural progression) by his service-connected herniated bilateral flat feet; In answering these questions, please discuss the treatment records characterizing the condition as diabetic foot ulcers and the February 2013 VA examination report stating that bilateral flat feet “also contributes to ulcers of the feet.” 6. If and only if foot ulcers are symptoms, complications, or secondary to the Veteran’s bilateral flat feet, refer the claim of entitlement to an extraschedular rating for bilateral flat feet to the Director of Compensation Service, for consideration of assignment of an extraschedular evaluation. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel