Citation Nr: 18146580 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-55 462 DATE: October 31, 2018 ORDER Entitlement to service connection for vitamin B-12 deficiency is denied. Entitlement to service connection for sleep apnea is denied. Prior to March 14, 2018, entitlement to a rating in excess of 10 percent for diabetes mellitus is denied. From March 14, 2018, entitlement to a rating of 20 percent – but no higher – for diabetes mellitus is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for nephropathy is remanded. Entitlement to service connection for heart disease also claimed as ischemic heart disease is remanded. Entitlement to service connection for gastroparesis is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for prostate hypertrophy also claimed as a prostate condition is remanded. Entitlement to service connection for diabetic cytopathy claimed as bladder dysfunction is remanded. Entitlement to service connection for tinea corporis claimed as porphyria cutanea tarda and a skin condition with red spots is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. Entitlement to service connection for posttraumatic stress disorder is remanded. Entitlement to service connection for an anxiety disorder is remanded. FINDINGS OF FACT 1. The evidence is insufficient to show that the Veteran’s vitamin B-12 deficiency had its onset in service or is otherwise related to service. 2. The evidence is insufficient to show that the Veteran’s sleep apnea had its onset in service, is related to herbicide exposure in service or is otherwise related to service. 3. Prior to March 14, 2018, the Veteran’s diabetes mellitus was regulated by restricted diet alone; use of insulin or an oral hypoglycemic agent was not required. 4. From March 14, 2016, the Veteran’s diabetes mellitus was regulated by restricted diet and use of an oral hypoglycemic agent; regulation of activities was not required. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for vitamin B-12 deficiency have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309. 3. Prior to March 14, 2018, the criteria for entitlement to a rating in excess of 10 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.119, DC 7913. 4. From March 14, 2018, the criteria for entitlement to a rating of 20 percent – but not higher – for diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.119, DC 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1964 to April 1966. The Veteran first filed his claim for service connection for sleep apnea and vitamin B-12 deficiency in September 2014. A December 2014 rating decision denied the claims. In December 2014, the Veteran resubmitted his service connection claims for sleep apnea and vitamin B-12 deficiency. A July 2016 rating decision continued the denial. The Veteran filed a notice of disagreement in August 2016. A statement of the case (SOC) was issued September 2016. The Veteran filed a VA Form 9 in September 2016. Service Connection 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; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). A veteran must have been present on the landmass or inland waterways of Vietnam at some point during his or her military duty to be entitled to the presumption of herbicide exposure. Haas v. Peake, 525 F.3d 1168 (2008). As the Veteran served in Vietnam, herbicide exposure to presumed. 1. Entitlement to service connection for vitamin B-12 deficiencies. The Veteran has a current diagnosis of vitamin B-12 deficiency. See VA Treatment Records. The issue that remains disputed is whether the Veteran’s vitamin B-12 deficiency had its onset in service or is otherwise related to service. The preponderance of the evidence is against the claim. The Veteran’s service treatment records are silent for complaints of or treatment for B-12 deficiency. The Veteran’s VA treatment records show a diagnosis of vitamin B-12 deficiency in 2013. In an April 2017 statement regarding his B-12 deficiency condition, the Veteran asserted that since separation he started suffering from severe cramps, muscle weakness, fatigue. The evidence is insufficient to show that the Veteran’s B-12 deficiency had its onset in service or is related to service. Although no VA examination was accorded to the Veteran, the Board finds that no such development is warranted based upon the facts of this case. In pertinent part, there is medical evidence which diagnoses the current disability but the record does not remotely suggest that his disabilities are due to or incurred during service. Only the Veteran’s contentions indicate a relationship with service, which is insufficient to trigger an examination since in these circumstances the validity of the assertions would require competent medical evidence. Service connection for vitamin B-12 deficiency is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for sleep apnea. The Veteran has a current diagnosis of sleep apnea. See December 2014 Private Treatment Notes. As such, the issue that remains disputed is whether the Veteran’s sleep apnea had its onset in service, was caused by herbicide exposure in service, or is otherwise related to service. To this end, the evidence is against the claim. The Veteran’s service treatment records are silent for complaints of or treatment for sleep apnea. In addition, the evidence does not show the Veteran had a diagnosis of sleep apnea until March 2014 – over 40 years after separation. As such, service connection on a direct basis is not warranted. The Board has considered the Veteran’s assertions that his sleep apnea is related to herbicide exposure in service. Sleep apnea is not a diagnosis eligible for presumptive service connection and the Veteran is not competent to assert a relationship between his herbicide exposure and his sleep apnea. Thus, the Veteran’s statements are of limited probative value. The Veteran was not afforded a VA examination because the evidence was insufficient to trigger an examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Service connection for sleep apnea is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 3. Entitlement to a rating in excess of 10 percent for diabetes mellitus. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. The Veteran asserts that his diabetes mellitus is more disabling than reflected in his current 10 percent rating. Under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes mellitus that is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted 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 a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Notably, the Veteran must be required to avoid strenuous occupational and recreational activities. The restriction on both types of activities is a means of showing the severity of the disability. Id. at 363. In addition, the Court held that medical evidence is required to show the need for regulation of activities. Id. at 364. Compensable complications of diabetes mellitus are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation under Diagnostic Code 7913. Noncompensable complications are deemed to be part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913. A November 2014 VA examination report indicates that the Veteran’s diabetes mellitus was managed by restricted diet. The Veteran did not required regulation of activities. The Veteran reported that he visits his diabetic care provider for ketoacidosis or hypoglycemia less than 2 times per month. Over the prior 12 months, the Veteran did not have any episodes of ketoacidosis or hypoglycemic reactions that required hospitalization. The Veteran did not have progressive unintentional weight loss or loss of strength due to diabetes. The Veteran did not have any complications for his diabetes mellitus. A September 2015 VA examination report indicates that the Veteran’s diabetes mellitus was managed by restricted diet. The Veteran did not required regulation of activities. The Veteran reported that he visits his diabetic care provider for ketoacidosis or hypoglycemia less than 2 times per month. Over the prior 12 months, the Veteran did not have any episodes of ketoacidosis or hypoglycemic reactions that required hospitalization. The Veteran did not have progressive unintentional weight loss or loss of strength due to diabetes. The Veteran did not have any complications for his diabetes mellitus. The Veteran underwent an additional VA examination in February 2017. The examination report indicates that the Veteran’s diabetes mellitus was managed by restricted diet. The Veteran did not require regulation of activities. The Veteran reported that he visits his diabetic care provider for ketoacidosis or hypoglycemia less than 2 times per month. Over the prior 12 months, the Veteran did not have any episodes of ketoacidosis or hypoglycemic reactions that required hospitalization. The Veteran did not have progressive unintentional weight loss or loss of strength due to diabetes. Regarding complications, the Veteran had a diagnosis of diabetic peripheral neuropathy of the lower extremities. A March 2018 VA examination report indicated the Veteran’s diabetes was managed by a restricted diet and the Veteran was prescribed oral hypoglycemic agent. The Veteran did not require regulation of activities as part of the medical management of diabetes. The Veteran did not required hospitalization for ketoacidosis or hypoglycemic reactions in the prior 12 months. The Veteran did not have progressive unintentional weight loss or loss of strength attributable to diabetes mellitus. The Veteran had a diagnosis of diabetic peripheral neuropathy. Based on the evidence, the Board finds that a 20 percent rating for diabetes is warranted effective March 14, 2018. The evidence shows that prior to March 14, 2018, the Veteran’s diabetes was managed by restricted diet only. As such, a rating in excess of 10 percent prior to March 14, 2018 is not warranted. The March 2018 VA examination report shows a worsening in the Veteran’s diabetes mellitus symptoms. The Veteran was an oral hypoglycemic agent. Thus, the March 2018 VA examination report indicates that the Veteran’s diabetes mellitus more nearly approximated the criteria for a 20 percent rating. For the entire appeal period, the evidence shows that regulation of activities was not required for management of the Veteran’s diabetes. Thus, the Veteran did not meet the criteria for a rating in excess of 20 percent. The Board has also considered whether separate ratings are required for complications of diabetes. Notably, a March 2017 rating decision granted service connection for diabetic peripheral neuropathy and assigned a 10 percent rating for the right lower extremity and a 10 percent rating for the left lower extremity pursuant to DC 8520. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. The evidence does not show moderate incomplete paralysis of the left or right lower extremity; a rating in excess of 10 percent for peripheral neuropathy is not warranted. Furthermore, the record is silent for any additional complications of diabetes. Thus, an additional rating is not warranted. In sum, the 20 percent rating for diabetes mellitus, but no higher, is warranted effective March 14, 2018. The Board has considered whether an earlier date for the grant of an increased rating is warranted. However, the March 2018 VA examination is the earliest date upon which it is factually ascertainable that the Veteran had a worsening of symptoms. REASONS FOR REMAND 4. Entitlement to service connection for bilateral hearing loss. A May 2013 rating decision denied service connection for bilateral hearing loss. In a June statement, the Veteran indicated that he wanted to appeal all the issues in the May 2013 letter. The Board construes this as a timely notice of disagreement with the May 2013 rating decision. The RO has not issued a statement of the case (SOC) in response. Thus, the Board is required to remand the matter for issuance of a statement of the case addressing the claim. See 38 C.F.R. § 19.9(c); see also Manlincon v. West, 12 Vet. App. 238 (1999). Notably, the RO also denied the claim in December 2014 and July 2016 rating decisions based on a finding that new and material evidence was not received to reopen the claim. However, as the Veteran never received an SOC in response to the May 2013 NOD – the claim remained open. 5. Entitlement to service connection for hypertension. As the May 2013 rating decision denied service connection for hypertension and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. Notably, the Board also continued the denial in August 2014 rating decision. In December 2014 and July 2016 rating decisions based on a finding that new and material evidence was not received to reopen the claim. However, as the Veteran never received an SOC in response to the May 2013 NOD – the claim remained open. The Board also finds that the additional development is required regarding the Veteran’s hypertension claim. The evidence shows that the Veteran’s hypertension pre-existed service and was noted on his entrance examination. A medical opinion is necessary to determine if the Veteran’s preexisting hypertension was aggravated by service. 6. Entitlement to service connection for nephropathy is remanded. As the May 2013 rating decision denied service connection for nephropathy and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 7. Entitlement to service connection for heart disease also claimed as ischemic heart disease is remanded. As the May 2013 rating decision denied service connection for heart disease and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 8. Entitlement to service connection for gastroparesis is remanded. As the May 2013 rating decision denied service connection for gastroparesis and the Veteran filed an NOD in June 2013, a remand is required. See Manlincon, 12 Vet. App. at 238. 9. Entitlement to service connection for erectile dysfunction is remanded. As the May 2013 rating decision denied service connection for erectile dysfunction and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 10. Entitlement to service connection for prostate hypertrophy also claimed as a prostate condition is remanded. As the May 2013 and August 2014 rating decisions denied service connection for prostate hypertrophy and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 11. Entitlement to service connection for diabetic cytopathy claimed as bladder dysfunction is remanded. As the May 2013 rating decision denied service connection for diabetic cytopathy and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 12. Entitlement to service connection for tinea corporis claimed as porphyria cutanea tarda and a skin condition with red spots is remanded. As the May 2013 rating decision denied service connection for tinea corporis and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 13. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is remanded. As the May 2013 rating decision denied service connection for peripheral neuropathy of the bilateral upper extremities and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 14. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. As the May 2013 rating decision denied service connection for PTSD and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. 15. Entitlement to service connection for an anxiety disorder is remanded. As the May 2013 rating decision denied service connection for anxiety disorder and the Veteran filed an NOD in June 2013, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. The matters are REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination for his hypertension. The examiner shoulder issue an opinion as to whether it is clear and unmistakable that the Veteran’s pre-existing hypertension WAS NOT aggravated in service. In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service, or that it is clear and unmistakable that any increase in disability was due to the natural progress of the preexisting condition. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Readjudicate the issues of entitlement to service connection for bilateral hearing loss and hypertension. 3. Issue a statement of the case addressing the issues of entitlement to service connection for nephropathy, heart disease, gastroparesis, erectile dysfunction, prostate hypertrophy, diabetic cytopathy, tinea corporis, peripheral neuropathy of the bilateral upper extremities, PTSD, and anxiety disorder. Inform the Veteran that to complete the appellate process for this issue, he should submit a timely substantive appeal. If the Veteran perfects his appeal by filing a timely substantive appeal, the matter should be returned to the Board for further appellate review, if otherwise in order. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel