Citation Nr: 18144447 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-34 410 DATE: October 24, 2018 ORDER Entitlement to service connection for a depressive disorder is granted. Entitlement to service connection for obstructive sleep apnea is granted. Entitlement to service connection for peripheral neuropathy, diagnosed as bilateral carpal tunnel syndrome, is denied. Entitlement to an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus is denied. Entitlement to an effective date prior to March 31, 2014, for the award of service connection for type II diabetes mellitus is denied. FINDINGS OF FACT 1. The Veteran’s depression is aggravated beyond its natural progression by his service-connected type II diabetes mellitus. 2. The Veteran’s obstructive sleep apnea is aggravated beyond its natural progression by his service-connected depressive disorder. 3. The Veteran’s peripheral neuropathy, diagnosed as bilateral carpal tunnel syndrome, is not attributable to service 4. The Veteran’s peripheral neuropathy, diagnosed as bilateral carpal tunnel syndrome, is not proximately caused by or proximately aggravated by service-connected type II diabetes mellitus. 5. The Veteran’s diabetes mellitus is managed by restricted diet and oral medication, but does not require insulin or restriction of activities. 6. The Veteran did not file a formal or informal claim for entitlement to service connection for diabetes prior to October 15, 2013, and the medical evidence did not show a diagnosis of diabetes mellitus until March 31, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for service connection for peripheral neuropathy, diagnosed as bilateral carpal tunnel syndrome, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. The criteria for an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.120 including Diagnostic Code 7913 (2017). 5. The criteria for an effective date prior to March 31, 2014, for the award of service connection for type II diabetes mellitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to July 1967. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Entitlement to service connection for a psychiatric condition, to include as secondary to service-connected type II diabetes mellitus. The Veteran filed an October 2013 claim for psychiatric condition. See October 2013 Correspondence. The first and second Wallin elements have been met. The Veteran has diagnosed depressive disorder. See July 2016 Dr. H.H.-G.’s private disability benefits questionnaire (DBQ). Further, he is service-connected for type II diabetes mellitus. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s depressive disorder and his service-connected diabetes mellitus. In a July 2016 private DBQ, Dr. H.H.-G. opined that the Veteran’s type II diabetes mellitus aggravates the Veteran’s depressive disorder. She explained that literature supports a causal relationship between medical and psychiatric difficulty. Affording the Veteran the benefit of reasonable doubt, the Board finds there is competent and credible medical evidence of record establishing a link between the Veteran’s depressive disorder and his service-connected diabetes mellitus. Accordingly, the Board grants service connection for depression. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected depressive disorder. The Veteran filed an October 2013 claim for obstructive sleep apnea. See October 2013 VA Form 21-526. The first and second Wallin elements are met and not in dispute. The Veteran has diagnosed obstructive sleep apnea. See April 2014 VA examination report. Further, pursuant to the above, the Veteran is service-connected for a depressive disorder. As such, the crux of this case centers on whether there is an etiological relationship between the Veteran’s obstructive sleep apnea and his service-connected depressive disorder. The Board notes the April 2014 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. However, in a February 2017 DBQ, private physician, Dr. H.S., opined that based on his experience, interview of the Veteran, review of the medical records, supporting medical literature, it is as likely as not that the Veteran’s depression aided in the development and permanently aggravates his obstructive sleep apnea. Affording the Veteran the benefit of reasonable doubt, the Board finds there is competent and credible medical evidence of record establishing a link between the Veteran’s obstructive sleep apnea and his service-connected depressive disorder. Accordingly, the Board grants service connection for depressive disorder. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus The Veteran filed an October 2013 claim for peripheral neuropathy. See October 2013 VA Form 21-526. He contends that his peripheral neuropathy is due to his service-connected type II diabetes mellitus. See April 2014 VA examination report. The first Shedden and Wallin elements are met. The Veteran was afforded VA peripheral nerve conditions examinations in April 2013 and April 2014 and was diagnosed with bilateral carpal tunnel syndrome. See April 2013 and April 2014 VA examination reports. The April 2014 VA examiner indicated that the Veteran does not now have nor has he ever been diagnosed with diabetic peripheral neuropathy. See April 2014 VA examination report. Further, the examiner noted that the Veteran did not have any symptoms attributable to diabetic peripheral neuropathy. Id. The second Shedden is met. A STR indicated the Veteran was seen for complaints of right wrist drop since July 1966 and recent trauma. He was given a provisional diagnosis of right wrist drop. Further, the second Wallin element is met. The Veteran is service-connected for type II diabetes mellitus. As such, the crux of this case centers on whether the Veteran’s diagnosed carpal tunnel syndrome is related to service or his service-connected diabetes mellitus. The April 2013 VA examiner opined that the Veteran’s claimed peripheral neuropathy was less likely as not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The examiner stated that the Veteran was not seen or treated for carpal tunnel syndrome while on active duty military service and the Veteran reported that the condition began years after service. The examiner stated the Veteran was seen for a right wrist condition in 1966; however, physical examinations in 1967 and 1968 were normal. The examiner explained that this implies the right wrist condition resolved. There was no medical evidence that a nerve condition was involved. The examiner stated that the Veteran worked as a janitor and a machinist after the military and these jobs can make one prone to carpal tunnel syndrome. The examiner concluded that the Veteran’s bilateral carpal tunnel syndrome is not related to active military service. The April 2014 VA examiner opined that the Veteran’s claimed peripheral neuropathy is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. The examiner stated that the Veteran has a history of carpal tunnel syndrome that was present prior to the onset of diabetes. The examiner stated that there was no change in this condition with the onset of diabetes. The examiner stated that the Veteran has altered sensation in the left foot that is not diagnostic of diabetic peripheral neuropathy that he reports has been present prior to the onset of diabetes. The examiner explained that the location of the altered sensation is most likely due to a lumbar spine condition and not due to his diabetes. The Board finds that the evidence does not warrant service connection for peripheral neuropathy or bilateral carpal tunnel syndrome. The Veteran is competent to testify as to facts he personally observed or described. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran’s bilateral carpal tunnel syndrome is attributable to service or service-connected disability cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran’s bilateral carpal tunnel syndrome is not within the realm of knowledge of a non-expert, and concludes that the Veteran’s opinion in this regard is not competent evidence and finds the VA examiners’ opinions are more probative. Accordingly, the Veteran’s claim of entitlement to service connection for bilateral carpal tunnel syndrome is denied because the evidence of record is not in equipoise. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 4. Entitlement to an initial evaluation in excess of 20 percent for service-connected type II diabetes mellitus The Veteran filed an October 2013 claim for service connection for diabetes mellitus. See October 2013 VA Form 21-526. In a May 2014 rating decision, service connection was granted for type II diabetes mellitus and a 20 percent evaluation was assigned, effective March 31, 2014. In a December 2014 notice of disagreement (NOD) the Veteran sought a higher initial evaluation for his diabetes mellitus. See December 2014 NOD. The Veteran’s type II diabetes mellitus is rated under the criteria of 38 C.F.R. § 4.120 (diseases of the endocrine system), DC 7913 (diabetes mellitus). The rating criteria in relevant part are as follows. A rating of 20 percent is assigned for diabetes mellitus requiring insulin and restricted diet; or, oral hypoglycemic and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet and regulation of activities (avoidance of strenuous occupational and recreational activities). A rating of 60 percent is assigned for diabetes mellitus requiring 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 not be compensable if separately evaluated. A rating of 100 percent is assigned for diabetes mellitus requiring 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. An April 2014 private treatment note indicated the Veteran was taking Metformin oral medication for his diabetes mellitus. The Veteran had a VA diabetes mellitus examination in April 2014 and was diagnosed with type II diabetes mellitus. The examiner indicated that the Veteran’s diabetes mellitus was managed by restricted diet. The Veteran does not require regulation of activities as part of medical management of his diabetes mellitus. The Veteran visited his diabetic care provider for episodes of ketoacidosis less than two times per month and visited his diabetic care provider for episodes of hypoglycemia less than two times per month. The Veteran did not have any episodes of ketoacidosis required hospitalization over the past 12 months. He did not have any episodes of hypoglycemic reactions that required hospitalization over the past 12 months. He did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to diabetes mellitus. Review of the evidence above shows the Veteran’s diabetes mellitus is managed by oral medication and by restrictive diet; he has not required insulin or restriction of activities. Accordingly, higher compensation under DC 7913 is not warranted. In sum, the Veteran’s diabetes mellitus more closely approximates the criteria for the currently assigned 20 percent rating for the entire period on appeal. Accordingly, the claim must be denied. 5. Entitlement to an effective date prior to March 31, 2014, for the award of service connection for type II diabetes mellitus The Veteran has claimed entitlement to an effective date prior to March 31, 2014, for the grant of service connection for type II diabetes mellitus. See December 2014 NOD. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p) (2017). Prior to March 24, 2015, the VA administrative claims process recognized both formal and informal claims. The Board recognizes that the Veteran’s claim was filed prior to March 24, 2015. Therefore, both formal and informal claims are recognized. A formal claim is one that has been filed in the form prescribed by VA. Id.; 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written and must identify the benefit being sought. Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999; Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran separated from service in July 1967. He filed a formal application seeking service connection for diabetes that was dated-stamped as received at the AOJ on October 15, 2013. The claims file does not contain any submissions by the Veteran prior to this date that can reasonably be construed as a claim for service connection for diabetes. The most recent claim in the file prior to the October 15, 2013, application for service connection is a September 2012 formal claim for service connection for rash and tendinitis and a January 2013 Report of General Information wherein the Veteran clarified he was claiming brain tumor, rashes, bilateral carpal tunnel syndrome, and tendinitis. See September 2012 VA 21-526 and January 2013 Report of General Information. Additionally, neither the Veteran nor his representative has asserted that he filed a prior claim. Other than checking the box on his December 2014 NOD that indicated his disagreement with the effective date of the award for type II diabetes mellitus, and then filing a substantive appeal in July 2016, the Veteran has not asserted any theory as to why an earlier effective date is warranted for his diabetes mellitus. The Board notes that the May 2014 rating decision, which granted service connection for type II diabetes mellitus, effective March 31, 2014, indicated that the AOJ was unable to obtain medical records from Dr. A. Thus, medical evidence that could have been useful to support the claim was not available. The rating decision indicated that the Veteran may be entitled to an earlier effective date if he submits medical evidence showing he was diagnosed with diabetes as of October 15, 2013, the date of receipt of the claim for presumptive service connection for diabetes. The AOJ requested that he submit this evidence in order to reconsider an earlier effective date for his diabetes condition. Thereafter, neither the Veteran nor his representative submitted medical evidence supporting that he had a diabetes mellitus diagnosis at the time of his October 15, 2013, service connection claim or any time prior to March 31, 2014. As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. Although the Veteran’s original claim for diabetes was filed in October 2013, the medical evidence did not show a diagnosis of diabetes until March 31, 2014. Therefore, March 31, 2014, is the earliest date assignable for the award of service connection for diabetes mellitus. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Accordingly, the Board concludes that March 31, 2014, is the proper effective date for the award of service connection for type II diabetes mellitus and the claim for an earlier effective date must be denied. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel