Citation Nr: 18144630 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-99 776A DATE: October 25, 2018 ORDER Entitlement to a rating more than 20 percent for diabetes mellitus type II is denied. The severance of service connection for depressive disorder with alcohol abuse was proper and the appeal is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s service-connected diabetes mellitus type II has not required regulation of activities (avoidance of strenuous occupational and recreational activities). 2. The rating decision of September 2013, which granted service connection for depressive disorder with alcohol abuse, was based on clear and unmistakable clerical error. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating more than 20 percent for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.119, Diagnostic Code 7913 (2017). 2. The severance of service connection for depressive disorder with alcohol abuse was proper. 38 U.S.C. §5112; 38 C.F.R. § 3.105 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Te Veteran had active duty service from April 1968 to January 1970. In September 2017, the Veteran testified at a Decision Review Officer (DRO) hearing at the Regional Office (RO). A transcript of that hearing is of record. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating more than 20 percent for diabetes mellitus type II. Diabetes mellitus is rated pursuant to Diagnostic Code 7913, 38 C.F.R. § 4.119. In this case, the RO rated the Veteran’s diabetes mellitus as 20 percent disabling under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. The Veteran asserts that rating more than 20 percent is warranted for his service-connected diabetes mellitus type II. Under Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires insulin, 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 100 percent rating is warranted when the diabetes 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. Id. Relevant to this appeal, the criteria for rating diabetes are “successive.” Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). “Successive” criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). The term “regulation of activities” is specifically defined as “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 363. Medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In other words, a medical provider must indicate that the claimant’s “diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity.” Id. Although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21 (2017), those regulations do not apply where the rating schedule establishes successive criteria. The criteria for 60 and 100 percent ratings also require “regulation of activities.” See Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). The Board notes that the Veteran has received mostly VA treatment for his condition. These treatment reports do not demonstrate that the Veteran requires regulation of activities as part of his medical management of diabetes. The Veteran underwent a VA diabetes examination in January 2013. The examiner diagnosed the Veteran with diabetes mellitus type II. The examiner noted that the Veteran’s current treatment consists of oral medication. The examiner reported that the Veteran is not restricted in his activities due to diabetes. The examiner also reported no episodes of hypoglycemia or hyperglycemia in recent years. The Veteran received another VA diabetes examination in March 2018. The examiner confirmed a diagnosis of diabetes mellitus type II. The examiner again noted that the Veteran’s current treatment consists of oral medication and it was again reported that he is not restricted in his activities due to diabetes. The examiner stated that the Veteran sees his provider for episodes of ketoacidosis or hypoglycemia less than two times per month. To summarize, there is no medical evidence indicating that a medical provider advised the Veteran to restrict his activities in any way for the purpose of treating his diabetes. In fact, the January 2013 and March 2018 VA examiners both noted that the Veteran does not require regulation of activities as part of medical management of his diabetes mellitus type II. Based on a careful review of the evidence, the Board finds that the Veteran’s diabetes mellitus type II does not warrant a 40 percent rating. The Veteran requires oral medication, but does not require regulation of his activities due to his diabetes. Although the Veteran takes numerous medications, the rating criteria does not provide for higher evaluations based on the number of medications. Rather, the rating criteria require that the Veteran’s activity have restrictions as a result of his diabetes to consider a higher evaluation. Here, the evidence does not demonstrate that the Veteran’s diabetes mellitus has reached the level of severity necessary for a 40 percent rating. Therefore, the Board finds that the Veteran’s diabetes mellitus type II is no more than 20 percent disabling. Further, no separately ratable impairment has been clinically established that would warrant a compensable rating. In sum, the Board finds that the preponderance of the evidence is against a rating more than 20 percent for diabetes mellitus type II. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher evaluation, that doctrine is not applicable. See 38 U.S.C. § 5107(b). 2. Propriety of the severance of service connection for depressive disorder with alcohol abuse. The issue before the Board is whether the RO’s September 2015 severance of service connection for depressive disorder with alcohol abuse was proper. Once service connection has been granted, it can be severed only when the evidence establishes that it is “clearly and unmistakably erroneous.” 38 C.F.R. § 3.105(d). The burden of proof is on the government. Id. When VA seeks to sever service connection, section 3.105(d) imposes the same burden of proof, clear and unmistakable error (CUE) that is placed on a claimant who, under section 3.105(a), seeks to have a previous unfavorable decision overturned. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). In accordance with section 3.105(a), to determine whether CUE was present in a prior decision, either the correct facts, as they were known at the time, must not have been before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time must have been incorrectly applied. The error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Stated another way, CUE is a “very specific and rare kind of ‘error.’” Fugo v. Brown, 6 Vet. App. 40, 43 (1993). It is the kind of error that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Id. “Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, clear and unmistakable.” Id. at 43-44. Unlike section 3.105(a), however, section 3.105(d) does not limit VA to the law or the evidence that existed at the time of the grant of service connection. See Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006); Allen v. Nicholson, 21 Vet. App. 54, 59 (2007). Rather, VA may consider medical evidence that postdates the decision that granted service connection. Id. “[T]he severance decision focuses-not on whether the original decision was clearly erroneous-but on whether the current ‘evidence establishes that [service connection] is clearly erroneous.’” Stallworth, 20 Vet. App. at 488. Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Establishing service connection generally requires: (1) the existence of a present disability; (2) 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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Initially, the Board notes that the Veteran’s service records are silent as to treatment for an acquired psychiatric disorder. His VA treatment records show a diagnosis of depressive disorder and alcohol abuse in approximately August 2005, and it was noted that he takes prescription medication to manage his condition. A July 2013 PTSD examination included diagnoses of depressive disorder and alcohol abuse. While the examiner listed the Veteran’s psychiatric symptoms and reported history, she did not provide an etiological opinion. An addendum opinion was obtained in August 2013. The examiner provided the following remarks: Based on the review of the C-file, it is less likely as not, that the veteran's Major Depressive Disorder is due to, aggravated, or a result of his military service. Rationale: There is documented evidence in the C-File that the Veteran's symptoms of Major Depressive Disorder are being treated since 2005. The Veteran' service ended in 1970. It is very unlikely that the reported symptoms are related to his military service since they were reported approximately 35 years after discharge from military service. A September 2013 rating decision granted service connection for depressive disorder with alcohol abuse and assigned a 50 percent rating, effective September 18, 2012. Curiously, the RO included the July 2013 VA PTSD examination and August 2013 addendum opinion as the basis for its decision. The Board emphasizes that the August 2013 addendum opinion that the RO relied on in granting entitlement to service connection for depressive disorder with alcohol abuse included a negative nexus opinion. Apparently realizing this error, a September 2015 rating decision proposed to sever entitlement to service connection for depressive disorder with alcohol abuse, effective December 1, 2015. The Board observes that the RO followed the proper due process steps to sever service connection. The RO issued a proposed rating decision in September 2015 and the Veteran filed a notice of disagreement (NOD) in October 2015, which was ultimately appealed to the Board. In September 2017, the Veteran testified that he is seen about every six months for mental health issues and that he has been to group sessions in the past. He stated that he has done some counseling for PTSD but mostly on alcohol abuse. He also stated that he believes the stress of going to Vietnam triggered his condition because he knew a lot of friends that were injured or killed in Vietnam. The Veteran received another VA examination in March 2018. The examiner remarked that the Veteran meets the DSM criteria for insomnia disorder, alcohol use disorder, and major depressive disorder. The examiner noted that the depressive disorder is secondary to insomnia and alcohol dependence and none are related to any service-connected stressors. The examiner opined that it is less likely as not that the Veteran’s condition is related to service, nor is it proximately due to or aggravated by his service-connected diabetes mellitus. The examiner explained that there is no evidence that his condition is related to military service, as the Veteran did not seek treatment for his mental health problems until approximately over ten years ago and there is no nexus to his one year of miliary service and current symptoms. The examiner also explained that there is no antecedent disorder as his diabetes was diagnosed eight years ago, long after his mental health issues were first reported and treated. It was stated that his emotional and sleep issues are not related to diabetes and are more likely related to the Veteran’s chronic severe alcohol dependence. The Board finds that the RO’s grant of service connection for a depressive disorder with alcohol abuse in September 2013 was based on clear and unmistakable error. The issue in this case is whether or not service connection was warranted for an acquired psychiatric disorder that had its onset during service. Here, there is no evidence in the available service medical records to show any relevant complaints, treatment, findings, or diagnoses, nor has the Veteran claimed to have received any treatment for psychiatric symptoms during service. The Board reiterates that the Veteran first sought psychiatric treatment in approximately 2005. The Board also finds that the VA opinions of record all weigh strongly against the claim. These opinions are considered to be highly probative, as they are shown to have been based on a review of the Veteran’s claims files, and as they are accompanied by sufficient explanations. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). In this case, the Board finds that there is clear and unmistakable evidence that the RO’s grant of service connection for a depressive disorder with alcohol abuse in September 2013 was based on clear and unmistakable error. Specifically, the error was clerical in nature as there is not a single opinion of record to suggest that the Veteran’s current condition is attributable to his military service, yet service connection was still granted. Accordingly, the RO’s severance of service connection for depressive disorder with alcohol abuse proposed in September 2015 and effectuated on December 1, 2015 was proper. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. As discussed above, the Veteran’s most recent and pertinent VA examination apparently took place in March 2018. The Board observes that it does not appear that the VA examiner completed a VA Disability Benefits Questionnaire (DBQ). Instead, the examiner provided a summary of the Veteran’s symptoms in the remarks section of the opinion. Given this, the Board finds it unclear whether the Veteran has a clinically confirmed diagnosis of PTSD. Notably, VA has determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran’s appeal was certified to the Board in August 2018, the DSM-5 applies here. In light of the above, the Board finds that a new VA examination is warranted in this instance. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a VA examiner of appropriate expertise to determine the nature and etiology of his claimed PTSD. The examiner is to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. (a) After the review of the electronic claims file and examination of the Veteran, the examiner should identify and whether PTSD is clinically established. An explanation for any opinions expressed must be provided, and if the requested information cannot be provided without resort to speculation, the examiner should so state and explain why. (b) If the examiner does not find PTSD or finds that the diagnosis of such is not appropriate, the examiner should give specific reasoning for that conclusion. If no disorder is found the examiner must express whether the disorder existed earlier in the appeal period and the examiner should clearly explain why the noted evidence does not establish a chronic diagnosis of PTSD. (c) If and only if the examiner finds that PTSD is/are present, or was/were present at any time during the appeal period though it has since resolved, the examiner should then opine whether any PTSD at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service. The examiner should specifically address the Veteran’s contentions and his lay statements regarding onset of symptomatology and any continuity of symptomatology since discharge from service or since onset of symptomatology. The examiner should also address and reconcile any previous examination reports, as well as any other pertinent evidence of record, as necessary. The examiner must provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel