Citation Nr: 18145617 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-31 087 DATE: October 30, 2018 ORDER 1. The appeal to reopen a claim of service connection for a psychiatric disability is granted. 2. Entitlement to service connection for an anxiety disorder is granted. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus is denied. REMANDED 4. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is remanded. 5. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is remanded. 6. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is remanded. 7. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus is remanded. FINDINGS OF FACT 1. An unappealed November 2002 rating decision denied the Veteran service connection for posttraumatic stress disorder (PTSD), finding there was no diagnosis of such disability; no corroborating evidence of a stressor event in service; and no nexus between any diagnosed psychiatric disability and service. 2. Evidence received since the November 2002 rating decision includes VA medical opinions that indicate the Veteran has an anxiety disorder likely due to his military stressors; relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disability; and raises a reasonable possibility of substantiating such claim. 3. The Veteran’s currently diagnosed anxiety disorder is shown by competent evidence to be causally related to his military service. 4. At no time under consideration is the Veteran’s diabetes mellitus shown to have required regulation of activities to maintain control (in addition to insulin and diet). CONCLUSIONS OF LAW 1. New and material evidence has been received and the claim of service connection for a psychiatric disability may be reopened. 38 U.S.C. §§ 5108, 7105, 7252; 38 C.F.R. § 3.156. 2. Service connection for an anxiety disorder is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304. 3. A rating in excess of 20 percent for diabetes mellitus is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code (Code) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1969 to April 1973 and December 1990 to May 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2013 and September 2015 rating decisions. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7105. However, a claim on which there is a prior final denial decision may be reopened and reconsidered if new and material evidence is received. 38 U.S.C. § 5108. “New” evidence means existing 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 CAVC has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold one. CAVC interpreted the language of 38 C.F.R. § 3.156 (a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. The appeal to reopen a claim of service connection for a psychiatric disability is granted. Service connection for PTSD was previously denied based on findings that the Veteran did not have a diagnosis of PTSD (and a corroborated stressor event in service was not shown) and that any psychiatric disability shown was not related to his service. Accordingly, for evidence to relate to an unestablished fact necessary to substantiate the claim, and be new and material it would have to tend to show that the Veteran has a diagnosed psychiatric disability that is, in fact, etiologically related to his service. The evidence added to the record since the November 2002 rating decision includes an October 2012 VA examination report and an April 2013 addendum opinion both indicating that the Veteran’s diagnosed anxiety disorder, albeit not PTSD. is likely due to military stressors. Such evidence directly addresses the bases for the prior denial of this claim; pertains to an unestablished fact necessary to substantiate the claim; and, considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, raises a reasonable possibility of substantiating the claim. Accordingly, the evidence received is both new and material and the claim of service connection for a psychiatric disability may be reopened. 2. Service connection for an anxiety disorder is granted. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A disorder diagnosed after discharge may still be service connected if all the evidence establishes that it was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In a July 1971 report of medical history, the Veteran reported depression or excessive worry and anxiety. On a February 1973 report of medical history, the Veteran reported depression or excessive worry, and anxiety. On February 1973 examination, psychiatric clinical evaluation was normal; it was noted that the Veteran experienced depression, excessive worry, and nervousness in 1969 due to personal problems, and responded to medication with no recurrence or medication since. On October 2012 VA examination the diagnosis was anxiety disorder NOS; no other mental disorder was diagnosed. The examiner noted post trauma symptoms, but found that the Veteran did not meet the full criteria for a diagnosis of PTSD. The examiner opined that the diagnosed anxiety disorder was likely due to military stressors. In an April 2013 addendum the examiner stated that while the Veteran had some PTSD symptoms (insufficient to establish a diagnosis of PTSD) his anxiety disorder was related to his military experiences. At the outset, the Board notes that in accordance with established caselaw, this issue is expanded to encompass consideration of service connection for any psychiatric disability diagnosed (and also that PTSD is considered a specific anxiety disorder). The Veteran has a VA diagnosis of anxiety; was noted to have psychiatric symptoms in service; and a VA examiner has related the diagnosed disability to stressors in service. The Board finds no reason to question the competence of the October 2012 VA examiner, or the validity of the opinion offered, and finds it both probative and persuasive. All requirements for establishing service connection for an anxiety disorder are met; service connection for an anxiety disorder is warranted. 3. A rating in excess of 20 percent for diabetes mellitus is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diabetes mellitus is rated under Code 7913, which provides for a 20 percent rating when the diabetes requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is to be assigned when insulin, a restricted diet, and regulation of activities are required. A 60 percent rating is warranted when insulin, a restricted diet and regulation of activities are required, along 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 requires 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 rated. 38 C.F.R. § 4.119. “Regulation of activities” is defined as a situation in which the veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,466 (May 7, 1996) (defining “regulation of activities,” as used by VA in Code 7913). Note 1 to Code 7913 provides that compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings may be assigned for different periods of time based on facts found where the disability fluctuated in severity during the evaluation period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On July 2015 VA examination it was noted that the Veteran’s diabetes mellitus was managed by prescribed oral hypoglycemic agents, and daily insulin injections. There was no regulation of activities for glycemic control. The Veteran received diabetic care less than two times per month, no hospitalizations for ketoacidosis or hypoglycemic reactions were noted. No progressive unintentional weight loss or progressive loss of strength was shown. No diabetic peripheral neuropathy was shown. It was noted that the Veteran’s erectile dysfunction and peripheral vascular disease was associated with his service-connected diabetes mellitus. The criteria for rating diabetes are cumulative (i.e. progressive increases in ratings require the criteria for the lower ratings in addition to those additional criteria that distinguish the higher rating). Furthermore, they are stated in the conjunctive, and all criteria so stated must be met to warrant the rating. Accordingly, to warrant the next higher (40 percent) rating in this case the evidence must show that in addition to diet and insulin, the Veteran’s diabetes has required regulation of activities. The record does not show that at any time under consideration the Veteran’s diabetes has required regulation (avoidance) of activities. July 2015 VA examination indicates that the Veteran’s diabetes mellitus is regulated by oral hypoglycemic agents, and insulin. Accordingly, the criteria for a 40 percent rating are not shown to have been met, and a 40 percent rating was not warranted. As the criteria for progressively increasing ratings for diabetes are cumulative, it follows that the criteria for still higher ratings are also not met. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. REASONS FOR REMAND 4., 5., 6., 7. Entitlement to service connection for left upper, right upper, left lower, and right lower extremity peripheral neuropathy, all to include as secondary to service-connected diabetes mellitus is remanded. The record contains conflicting information regarding a diagnosis of peripheral neuropathy associated with diabetes mellitus. A September 2014 Pharmacotherapy record notes that the Veteran was seen with complaints of tingling in the feet and hands. A December 2014 Ambulatory care record notes pain in the hands and feet and states that “erectile dysfunction and neuropathy could be a consequence of diabetes.” A March 2015 Ambulatory care record notes a history of diabetic neuropathy and notes that the Veteran was on Gabapentin. On July 2015 VA examination diabetic peripheral neuropathy was not found. A February 2016 Ambulatory care record notes that the Veteran’s diabetic neuropathy appeared to be under control with Gabapentin; on review of systems neurological evaluation was negative; past medical history included diabetic neuropathy. A March 2016 podiatry note lists diabetic neuropathy as an active problem. Neurological testing showed diminished sharp/dull proprioception and vibratory secondary to diabetic neuropathy. The assessment was diabetic neuropathy. An April 2016 Ambulatory care record notes a negative neurologic evaluation, but notes a past medical history of diabetic neuropathy. Given the conflicting evidence noted above, an examination to confirm whether the Veteran has diabetic peripheral neuropathy is necessary. The matters are REMANDED for the following: 1. Arrange for a neurological evaluation of the Veteran to determine whether he has peripheral neuropathy of the upper and lower extremities, and if so, identify its likely etiology. The Veteran’s entire record must be reviewed by the examiner in conjunction with the examination. Any tests or studies indicated should be completed. The examiner should: (a.) Indicate whether the Veteran has peripheral neuropathy of each upper and lower extremity. If not, reconcile the finding with the records noted above suggesting otherwise. (b.) Identify the likely etiology of any peripheral neuropathy diagnosed. Is it at least as likely as not (a 50% or better probability) that it was caused or aggravated by service-connected diabetes? (c.) If any diagnosed neuropathy is determined to not be related to the Veteran’s service-connected diabetes mellitus, identify the etiology considered more likely (specifically addressing medical records referring to diabetic peripheral neuropathy). The examiner must include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel