Citation Nr: 18146317 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 09-46 962A DATE: October 31, 2018 ORDER An effective date earlier than August 18, 2007 for the award of service connection for diabetes mellitus, type 2, with erectile dysfunction and hypertension is granted. An earlier effective date for the award of special monthly compensation (SMC) for loss of use of a creative organ is granted. An initial compensable rating for service-connected hypertension is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. Entitlement to a rating in excess of 20 percent for service-connected residuals of lumbosacral spine surgery with radiculopathy is remanded. Entitlement to SMC based on loss of use of both hands is remanded. Entitlement to SMC based on loss of use of both feet is remanded. Entitlement to SMC based on the need for regular aid and attendance is remanded. Entitlement to an earlier effective date for the award of service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for an ocular disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected right upper extremity peripheral neuropathy associated with squamous cell lung carcinoma is remanded. Entitlement to an initial rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy associated with squamous cell lung carcinoma is remanded. FINDINGS OF FACT 1. A review of the record shows VA had constructive knowledge of a hospitalization record showing the Veteran was diagnosed with uncontrolled diabetes on February 6, 1998, which was also explicitly added to the record, independently of any other treatment records, on February 9, 1998; considering the above in conjunction with his confirmed service in the Republic of Vietnam, the Board finds this record raised an implicit claim of service connection for diabetes and, consequently, that the granted claim on appeal has been pending since February 1998; as the evidence also shows the disability in question first manifested under all facts found on February 6, 1998, an effective date prior to August 18, 2007 is warranted under 38 C.F.R. § 3.816(c)(2). 2. VA’s February 2009 rating decision on appeal granted service connection for diabetes mellitus, type 2, with erectile dysfunction and hypertension, effective August 18, 2007 (one year prior to the date VA received the Veteran’s original claim seeking service connection) based in part on a concession, consistent with the pertinent medical evidence, that erectile dysfunction was first diagnosed circa 2002; therefore, the evidence also reasonably shows that substantive entitlement to SMC based on the loss of use of a creative organ arose well over a year before the date of claim and, consequently, an effective date prior to August 18, 2008 is warranted for such benefit under 38 C.F.R. § 3.400(o)(2). 3. At no point during the period on appeal does the evidence show the Veteran’s hypertension produced diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for the award of service connection for diabetes mellitus, type 2, with erectile dysfunction and hypertension have been met. 38 U.S.C. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 2. The criteria for an earlier effective date for the award of SMC for loss of use of a creative organ have been met. 38 U.S.C. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 3. A compensable rating for service-connected hypertension is not warranted. 38 U.S.C. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (Code) 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the daughter of a Veteran who served on active duty from January 1975 to April 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from February 2009, April 2009, and November 2015 rating decisions. The Veteran died in January 2017, but the appellant has been properly substituted in his place (as acknowledged in an April 2018 VA correspondence). At the Veteran’s request (prior to his death), a hearing was scheduled before the Board for September 2018. As this was after his passing, VA notified the appellant of that hearing in two separate August 2018 letters sent to the most recent address she has provided. However, she failed to report without any explanation. Thus, the Board considers that hearing request withdrawn and will proceed with adjudicating these matters. Several of the matters listed above are before the Board for the limited purpose of ordering corrective action pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), and therefore will not be considered in a substantive fashion at this time. While the Board acknowledges that a December 2015 notice of disagreement appealed the effective dates and ratings assigned with the awards of service connection for left and right upper extremity peripheral neuropathy, the Board has not listed the effective date claims separately here because they are substantively subsumed by the concurrent initial rating appeals for the same. That same notice of disagreement also appealed a November 2015 denial of SMC based on the loss of use of both hands and feet. However, the portion of that denial pertaining to the feet must be considered part and parcel of the concurrent appeal seeking higher ratings for service-connected right and left lower extremity peripheral neuropathy already substantively before the Board. For the reasons discussed above, the Board is granting the appeals seeking earlier effective dates for the awards of service connection for diabetes mellitus with erectile dysfunction and hypertension and SMC for loss of use of a creative organ in full, obviating the need for any further discussion at this time. The substantive analysis that follows will therefore focus exclusively on the claim seeking a higher rating for hypertension. A compensable initial rating for service-connected hypertension is denied. As the present appeal is from the initial grant of service connection, the law provides that statutory notice has served its purpose and is no longer required. Service treatment records (STRs) and pertinent postservice treatment records have been obtained. Neither the Veteran nor the appellant have identified any pertinent evidence that remains outstanding. VA examinations were conducted in conjunction with this claim in January 2009 and January 2015, and reflect a full examination and review of the pertinent medical history. The reports of those examinations describe the Veteran’s hypertension in sufficient detail to allow for accurate application of the pertinent rating criteria. Notably, the Veteran and appellant have had ample opportunity to respond and neither alleges that any development or notice was inadequate. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran’s hypertension is rated 10 percent under Code 7101, which provides that a 10 percent rating is warranted for diastolic pressure that is predominantly 100 or more or systolic pressure that is predominantly 160 or more. A minimum 10 percent rating is also warranted for individuals with a history of diastolic pressure predominantly 100 or more that require continuous medication for control. A higher 20 percent rating is warranted for diastolic pressure that is predominantly 110 or more or systolic pressure that is predominantly 200 or more. Higher 40 and 60 percent ratings are warranted for diastolic pressures that are predominantly 120 or more or predominantly 130 or more, respectively. 38 C.F.R. § 4.104, Code 7101. STRs include blood pressure readings of 144/68, 120/64, 130/82, 112/78, 112/78, 128/70, 132/60, 122/78, 112/80, and 120/78. Postservice treatment records show blood pressure readings of 114/67 in June 2008. On January 2009 VA examination, the Veteran said hypertension was diagnosed in 2001 and denied any symptoms. He said he treated it with hydrochlorothiazide, lisinopril, and metoprolol, without side effects. Blood pressures obtained on examination were 159/79, 137/79, and 126/83. On January 2015 VA examination, the examiner notes the Veteran had a long history of hypertension that was controlled with Lisinopril. The examiner found no history of diastolic blood pressure elevation to predominantly 100 or more. On examination, the examiner noted blood pressures of 128/73, 138/72, and 126/68 on three different days in the preceding month. Average blood pressure was 130/71. An August 2015 record notes that blood pressure decreased to a minimum of 99/61 during a stress test. The remaining treatment records in the file show blood pressure readings of 140/66, 121/62, 80/46, 108/62 (with appropriate increase after exercising to 110/70), 140/80, 121/71, 114/68, 132/69, 127/83, 146/86, 139/82, 127/69, 123/74, 136/70, 138/75, 154/80, 105/51, 120/79, 116/72, 126/68, 120/73, 126/76, 136/68, 133/72, 140/91, 102/56, 138/78, 104/50, 132/68, 120/68, 122/68, 140/91, 133/68, 105/51, 105/51, 148/73, 102/52, 143/81, 134/64, 121/62, 148/69, 138/72, 139/76, 121/56, 138/66, 138/60, 136/92, 155/82, 112/84, 126/75, 115/76, 103/65, 102/61, 111/63, 134/83, 123/70, 119/68, 152/75, 170/97, 154/76, 142/92, 132/82, 135/51, 121/65, 116/70, 130/75, 120/61, 143/81, 92/60, 123/65, 107/59, 120/60, 123/63, 97/58, 114/79, “122-150/66-90,” 130/72, 143/81, 123/65, 92/60, 121/78, “110s-150s/50s-80s,” “140-170s/70-100s,” “130s-160s/50s-60s,” “130s/60s,” and 113/73. Based on a review of the evidence, the Board finds no basis for awarding a compensable rating at any point during the period on appeal because nothing suggests the Veteran’s hypertension was productive of either diastolic pressures predominantly 100 or more or systolic pressure predominantly 160 or more. Moreover, there is also no evidence suggesting a history of diastolic pressures predominantly 100 or more that was controlled by medication. While the Board is sympathetic to the Veteran’s allegations that he required several different medications over the years to control his hypertension, these ameliorative effects are explicitly considered by the pertinent rating criteria. The Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates the diligent efforts to describe these symptoms while living with significant disability. However, his symptoms remain most consistent with a noncompensable rating. Although the Veteran believed, and the appellant argues, that a higher rating is warranted, this belief is outweighed by the more probative clinical evidence of record (including the findings of VA examiners). Thus, the preponderance of all probative evidence in the record shows a compensable rating is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hip disability is remanded. A review of the record shows the Veteran was diagnosed with bilateral hip arthritis and his STRs include explicit notations of hip pain associated with a diagnosis for postoperative low back disability. In addition, the Veteran expressly alleged his hip disabilities were secondary to his low back disability. However, no VA examination of record adequately addresses either direct or secondary theories of entitlement. Specifically, the November 2008 VA examiner failed to consider the notations of hip pain in service or provide any explanation for finding that (1) “the extent of pain in the right hip due to the lumbosacral spine condition cannot be prorated” and (2) the Veteran’s bilateral hip disability was secondary to age and unrelated to low back disability. Therefore, a supplemental medical opinion is needed. 2. Entitlement to service connection for a bilateral knee disability is remanded. The Veteran alleged that he had a bilateral knee disability secondary to his low back disability. A review of the record shows that, on prior VA examination of record, no knee disabilities were found. Since then, however, more recent VA treatment records suggest he was treated at a VA emergency department for bilateral knee complaints that may have been diagnosed as arthritis (based on X-rays ordered at that time) in February 2015. However, the records do not include the actual X-ray report referenced and are somewhat ambiguous about the findings therein (i.e., they indicate that X-rays of the knee and hip were ordered and “showed some degenerative arthritis,” but do not specify what joint or joints were affected). Therefore, the Board finds that updated records and a supplemental medical opinion are needed to obtain diagnostic and, potentially, etiological clarification. 3. Entitlement to initial ratings in excess of 20 percent for both service-connected right and left lower extremity peripheral neuropathy associated with diabetes mellitus is remanded. The Veteran competently reported that his lower extremity neurological disability caused episodes of temporary paralysis from time to time. Specifically, he alleged “temporary paralysis in my hips, ankles, knees, and feet” that rendered him “completely prostrated…more so on the left…than the right.” He also indicated this caused “limited movements in my feet” that were “moderate to[] marked.” The most recent July 2015 examination shows the Veteran’s peripheral neuropathy involved mild incomplete paralysis of several lower extremity nerves, but did not appear to consider these competent reports. While it is obviously not possible to examine the Veteran personally, the Board nonetheless needs a supplemental medical opinion adequately considering those allegations and estimating, as best as possible, the specific nerves implicated by such pathology, and the degree of such involvement, before the Board may assign an accurate disability rating for the pathology presented. 4. Entitlement to a rating in excess of 20 percent for service-connected residuals of lumbosacral spine surgery with radiculopathy is remanded. Inherent in determining whether a higher evaluation for service-connected low back disability is an inquiry into whether a separate rating is warranted for the associated lumbar radiculopathy (that VA already concedes as part of his service-connected back disability). Critically, however, it remains unclear whether the Veteran’s radicular symptoms or impairment could be meaningfully differentiated from the symptoms associated with his other service-connected lower extremity neurological disabilities (addressed above). This is critical because if the disabilities in question are overlapping and inextricably intertwined, the underlying radicular symptoms may already be compensated as part of the Veteran’s rating for peripheral neuropathy and the Board would be unable to separately rate them independently without running afoul of laws prohibiting double-compensation. Thus, additional development is needed before this matter can be adjudicated substantively. 5. Entitlement to SMC based on the loss of use of both feet is remanded. This matter is inextricably intertwined with the matter involving the ratings for lower extremity peripheral neuropathy being remanded above, because obtaining an accurate estimate of the severity and functional impact of these disabilities (that includes fair consideration of the Veteran’s competent lay reports) is central to determining whether there was such significant functional loss that the Veteran either had actual or effective loss of use of the feet (i.e., that he would have been equally well served by amputation with prosthesis). Consequently, a final adjudication of this claim must be deferred at this time. 6. Entitlement to SMC based on loss of use of both hands, SMC based on the need for regular aid and attendance, an earlier effective date for the award of service connection for CAD, service connection for an ocular disability, an initial rating in excess of 20 percent for service-connected right upper extremity peripheral neuropathy, and an initial rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy are remanded. A review of the record shows the Veteran filed timely July 2009 and December 2015 NODs appealing April 2009 and November 2015 rating decisions, respectively, that, in pertinent part, granted service connection for CAD effective August 18, 2008, granted service connection for right and left upper extremity peripheral neuropathy (rated 20 percent each, effective October 17, 2012), and denied service connection for an eye disability, SMC based on loss of use of both hands and feet, and SMC based on the need for regular aid and attendance. As no statement of the case (SOC) has been issued in those matters affording the Veteran (or the appellant) the opportunity to perfect those appeals, corrective action is required to ensure due process pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal, to SPECIFICALLY INCLUDE (but not limited to) any records of X-rays or other clinical testing completed in conjunction with a February 2015 VA emergency department visit for hip and knee pain. 2. Forward the Veteran’s record to an orthopedist for a supplemental medical opinion clarifying the nature and likely cause of his bilateral hip and knee disabilities. Based on a review of the record, the examiner must respond to the following: (a.) Please identify all hip and knee disability entities documented or supported by medical evidence in the record. The examiner should specifically consider the significance of February 2015 VA records noting emergency department treatment for knee and hip pain that indicates nonspecific degenerative arthritis. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record. If any previously documented diagnoses are no longer or otherwise not felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. (b.) For each hip disability diagnosed, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such disability is related to the Veteran’s military service, to include the notations of hip pain associated with postoperative low back disability therein. (c.) For each hip or knee disability diagnosed, please also opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that such is CAUSED OR AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION) BY the Veteran’s service-connected low back disability. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. Then, forward the record to a neurologist for a supplemental medical opinion regarding the severity of the Veteran’s service-connected lumbar radiculopathy and lower extremity diabetic peripheral neuropathies. Based on a review of the entire record, the examiner should provide opinions responding to the following: (a.) Please review the Veteran’s competent reports in the record of temporary paralysis in the hips, ankles, knees, and feet that rendered him “completely prostrated…more so on the left…than the right” and caused moderate to marked limitation of foot motion and opine, to the best of your ability, as to what lower extremity nerves are involved or implicated by such pathology. For each involved nerve identified, please also opine as to the severity of such involvement. If the examiner is unable to provide such an opinion, he or she MUST PROVIDE AN EXPLANATION as to why, BEYOND simply noting that it would require mere speculation. (b.) Please also opine as to whether there is clear evidence that the symptoms, pathology, or functional impairment associated with the Veteran’s service-connected lumbar radiculopathy may be distinguished from that associated with his service-connected lower extremity peripheral neuropathies. If so, the examiner MUST do so, identifying the specific and distinct symptoms, pathology, and resultant functional impairment attributable to each. (c.) Finally, please opine as to whether it is AT LEAST AS LIKELY AS NOT (A 50 PERCENT OR GREATER PROBABILITY) that the Veteran’s lower extremity neurological disabilities, including his lumbar radiculopathy, either individually or in the aggregate, were (at any point) productive of such severe impairment that he had either actual or effective loss of use of one or both feet (i.e., that he would have been equally well served by amputation with prosthesis). The examiner MUST CONSIDER the significance of the Veteran’s allegations noted above regarding temporary paralysis in the hips, knees, ankles, and feet with limitation of foot motion. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). [CONTINUED ON NEXT PAGE] 4. Then, issue an appropriate SOC addressing the appeals seeking SMC based on loss of use of both hands, SMC based on the need for regular aid and attendance, an earlier effective date for the award of service connection for CAD, service connection for an ocular disability, an initial rating in excess of 20 percent for service-connected right upper extremity peripheral neuropathy, and an initial rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy. The appellant should be informed of the means of filing a timely substantive appeal in these matters. Any properly appealed matters should then be returned to the Board for appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel