Citation Nr: 18145775
Decision Date: 10/30/18	Archive Date: 10/30/18

DOCKET NO. 16-02 008
DATE:	October 30, 2018
ORDER
The application to reopen a claim of entitlement to service connection for diabetic retinopathy is denied.
Service connection for diabetes insipidus is denied.
Service connection for lymphoma is denied.
Service connection for shortness of breath is denied.
Service connection for chronic fatigue is denied.
An effective date earlier than March 20, 2008, for the grant of service connection for peripheral neuropathy of the left lower extremity, is denied.
A rating in excess of 60 percent for coronary artery disease (CAD) status post myocardial infarction is denied.
A rating in excess of 20 percent for diabetes mellitus is denied.
A compensable rating for hypertension is denied.
REMANDED
Service connection for sleep apnea.
Service connection for L4-5 stenosis (claimed as back disability).
Service connection for posttraumatic stress disorder (PTSD) with depression.
Entitlement to a compensable rating for diabetic nephropathy.
Entitlement to a higher evaluation for peripheral neuropathy of the right upper extremity, currently evaluated as 20 percent disabling.
Entitlement to a higher evaluation for peripheral neuropathy of the left upper extremity, currently evaluated as 20 percent disabling. 
Entitlement to a higher evaluation for peripheral neuropathy of the right lower extremity, currently evaluated as 10 percent disabling.
Entitlement to an evaluation greater than 10 percent for peripheral neuropathy, left lower extremity.
Entitlement to an evaluation greater than 10 percent for residuals of a stroke.
Entitlement to an effective date earlier than April 26, 2012 for the grant of service connection for residuals of a stroke.
Entitlement to an effective date earlier than August 31, 2010 for a grant of TDIU.
FINDINGS OF FACT
1. A June 2009 RO decision denied the Veteran’s claim of entitlement to service connection for diabetic retinopathy.  The Veteran did not appeal or submit new and material evidence within one year.
2. Evidence received subsequent to the June 2009 RO decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for diabetic retinopathy.
3. A current diagnosis of diabetes insipidus, lymphoma, or chronic fatigue syndrome is not of record, and a chronic disability identified as shortness of breath has not been identified.
4. There is no legal basis to grant an effective date earlier than March 20, 2008, for the grant of service connection for peripheral neuropathy of the left lower extremity.
5. The Veteran's CAD has not been shown to be manifested by chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent.
6. The Veteran's diabetes mellitus does not require insulin, and is not manifested by episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or twice a month visits to a diabetic care provider.
7. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more and requiring continuous medication.
CONCLUSIONS OF LAW
1. The June 2009 rating decision that denied the Veteran’s claim of service connection for diabetic retinopathy is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2018).
2. New and material evidence has not been received to reopen the claim of service connection for diabetic neuropathy.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156(a) (2018).
3.  Service connection for diabetes insipidus, lymphoma, shortness of breath, and chronic fatigue is not warranted.  38 U.S.C. §§ 1110, 1131 5107 (2012); 38 C.F.R. § 3.303 (2018).
4.  The criteria for an effective date earlier than March 20, 2008, for the grant of service connection for peripheral neuropathy of the left lower extremity have not been met.  38 U.S.C. §§ 5110, 5107(b) (West 2015); 38 C.F.R. § 3.400 (2018).
5.  The criteria for a rating in excess of 60 percent for CAD are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7005 (2018).
6.  The criteria for a rating in excess of 20 percent for diabetes mellitus are not met.  38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.119, Diagnostic Code 7913 (2018).
7.  The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1972 to September 1979.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran is in receipt of TDIU, effective August 31, 2010, and is also in receipt of special monthly compensation under 38 U.S.C. 1114, subsection (s) and 38 C.F.R. 3.350(i).
Duties to Notify and Assist
Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).
Service connection for diabetes insipidus, lymphoma, shortness of breath, chronic fatigue, and diabetic retinopathy
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018).
The existence of a current disability is the cornerstone of a claim for VA disability compensation.  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The claims file does not contain a current diagnosis of diabetes insipidus, lymphoma, or chronic fatigue syndrome, and service connection for those claims must be denied on that basis  Although shortness of breath has been reported as a symptom (including of heart problems and the Veteran's anxiety disorder), a chronic disease entity identified as shortness of breath has not been identified.
As for diabetic retinopathy, this claim was denied in a June 2009 rating decision.  The claims file did not contain a current diagnosis of diabetic retinopathy at the time of the June 2009 RO decision and such a diagnosis is still not of record (including as noted in a July 2016 VA optometry record).  As such, the application to reopen this claim must be denied, as new and material evidence has not been presented or secured with respect to that claim.

Entitlement to an effective date earlier than March 20, 2008 for service connection for peripheral neuropathy, left lower extremity.
Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form.  The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations, however, apply only to claims filed on or after March 24, 2015.  Because the Veteran’s claim was received by VA prior to that date, the former regulations apply.
Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.  The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (q)(2).  If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation.  38 C.F.R. § 3.400 (b)(2).
In January 2012 the Veteran was granted service connection for diabetes mellitus (effective February 16, 2011), and in November 2015 the Veteran was granted service connection for left lower extremity peripheral neuropathy secondary to service-connected diabetes mellitus (also effective February 16, 2011).  After undertaking a review and reconsideration of the Veteran's claims file, in a June 2017 decision the RO assigned an effective date of March 20, 2008, for the grant of service connection for diabetes mellitus and left lower extremity peripheral neuropathy.

The Board observes that the date of March 20, 2008, for the grant of service connection for diabetes mellitus, is not in dispute in this case, and neither the Veteran nor his attorney have proffered any argument as to how an earlier effective date for the grant of service connection for left lower extremity peripheral neuropathy could be legally granted in this case.  In this regard, as the grant of service connection for left lower extremity peripheral neuropathy was secondary to diabetes, an effective date earlier than March 20, 2008, is not warranted.
Increased ratings
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018).  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018).  Where there is a question as to which of two evaluations shall be applied, 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 (2018).  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3 (2018).
Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptom that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).
Higher evaluation for coronary artery disease
The Veteran’s coronary artery disease has been evaluated under Diagnostic Code 7005.  Under this diagnostic code, a rating of 60 percent contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent.  A 100 percent rating contemplates documented coronary artery disease (DC 7005) or myocardial infarction (DC 7006) resulting in chronic congestive heart failure, or; workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, DC 7005.
A review of the evidence of record (including a March 2012 VA heart examination) shows that a higher rating is not warranted.  The medical evidence does not reveal chronic congestive heart failure, a work-load of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent.  Thus, a 100 percent rating is not warranted.
Diabetes
The Veteran’s diabetes has been evaluated under Diagnostic Code 7913.  Diabetes mellitus requiring insulin and restricted diet, or use of an oral hypoglycemic agent and a restricted diet, is assigned a 20 percent disability rating.  Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating.  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 a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, is assigned a 60 percent disability rating.  Diabetes mellitus requiring 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, is assigned a 100 percent disability rating.  38 C.F.R. § 4.119, Diagnostic Code 7913.
In addition, compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent disability evaluation, with noncompensable complications to be considered as part of the diabetic process under Diagnostic Code 7913.  38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1).
Diagnostic Code 7913 contains successive rating criteria because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007).  It must be medically necessary for the veteran to have a regulation of activities. The Veteran must have been “instructed to avoid strenuous occupational and recreational activities.”  Camacho, 21 Vet. App. at 360, 364.
The Veteran’s hypertension and diabetic nephropathy have been considered as part and parcel of the diabetic disease process and evaluated as such.

The Board finds that a rating in excess of 20 percent for diabetes is not warranted.  The evidence of record does not demonstrate that the Veteran has been instructed by a medical professional to avoid activities due to his diabetes.  Moreover, medical records indicate that the Veteran takes Metformin for his diabetes, not insulin.  There has also been no showing or assertions of any episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider.  Therefore, the Veteran’s diabetes symptoms do not meet the criteria required for a 40 percent or higher evaluation.
The Board will next consider whether the associated complication of hypertension is to be rated as separately compensable.
Hypertension
Diagnostic Code 7101 provides a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent rating is assigned for diastolic pressure predominantly 120 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101.
Records indicate that the Veteran has been prescribed Lisinopril for his hypertension.  A review of the blood pressure readings reveal diastolic pressure tending to range from 124 to 153 and diastolic readings tending to range from 53 to 81.  The Board can find no blood pressure reading showing that the Veteran’s diastolic pressure is predominantly 100 or more or that systolic pressure is predominantly 160 or more.  There are also no blood pressure readings indicating that the Veteran had a history of diastolic pressure predominantly 100 or more and required continuous medication for control.  As such, a compensable rating for hypertension is not warranted.
Conclusion to rating claims
The Board finds that there is not such an approximate balance of the positive evidence and the negative evidence to permit more favorable determinations. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
REASONS FOR REMAND
As for the claims of service connection for sleep apnea, L4-5 stenosis, and PTSD with depression, the Board finds that a VA examination is necessary to decide those claims as the evidence of record does not contain sufficient competent medical evidence to decide the claims.  As such, the Board finds that affording the Veteran VA examinations for the purpose of obtaining an opinion concerning a possible relationship between these claims and his military service is appropriate in this case.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
As for the issues of increased ratings for left and right upper and lower extremity peripheral neuropathy, a review of the claims file reveals that pertinent evidence, including December 2016 electrodiagnostic studies of the extremities, has been added to the claims file since the last primary adjudication of those issues in November 2015.  As such, these issues must be remanded to the RO for review and reconsideration.
As for the issue of a compensable rating for diabetic nephropathy, the Board finds that current findings are required in order to adjudicate this claim.  In this regard, the Board notes that a March 2012 VA kidney conditions examiner indicated that the Veteran had persistent proteinuria, but the accompanying laboratory finds did not appear to indicate as such.  Accordingly, the Veteran should be afforded another VA examination to assess the current severity of his diabetic nephropathy.

As for the issue of entitlement to an effective earlier than April 26, 2012 for service connection for residuals of a stroke, in corresponded dated in July 2017 the Veteran's attorney argued that an effective date for this disability should be assigned in the same manner (as a secondary condition of diabetes) that the effective date for peripheral neuropathy was assigned.  The Board finds that the AOJ should consider this argument prior to consideration by the Board.
As the issues on remand impact the issues of entitlement to an evaluation greater than 10 percent for residuals of a stroke and entitlement to an effective earlier than August 31, 2010 for a grant of TDIU, the Board will defer adjudication of those issues pending review by the AOJ.
The matters are REMANDED for the following action:
1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after April 11, 2017.
2. After any additional records are associated with the claims file, provide the Veteran with the appropriate VA examination pertaining to his sleep apnea, low back, and PTSD with depression service connection claims.  The claims file must be made available to and reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that each currently diagnosed low back disorder, psychiatric disorder, and sleep apnea had its onset in service or within one year of service discharge, or is otherwise related to the Veteran’s active service.
The examiner is also asked to state whether it is at least as likely as not that sleep apnea or a psychiatric disability is caused or aggravated by any service-connected disability.
3.  Provide the Veteran with an appropriate examination to determine the severity of the service-connected diabetic nephropathy.  The entire claims file should be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  The examiner must utilize the appropriate DBQ.
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4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2018).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.
 
K. A. KENNERLY
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	David Nelson