Citation Nr: 18146491 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-15 901 DATE: November 1, 2018 ORDER Entitlement to service connection for COPD with history of bronchitis, to include as secondary to diabetes mellitus type 2, is granted. Entitlement to service connection for coronary artery disease, to include as secondary to diabetes mellitus type 2, is granted. Entitlement to service connection for peripheral vascular disease of the right lower extremity, to include as secondary to diabetes mellitus type 2, is granted. Entitlement to service connection for peripheral vascular disease of the left lower extremity, to include as secondary to diabetes mellitus type 2, is granted. Entitlement to service connection for asthma is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for cholesterol problems is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type 2 is denied. REMANDED Entitlement to service connection for shaking of the hands is remanded. Entitlement to an increased level of special monthly compensation is remanded. Entitlement to an earlier effective date for the grant of service connection for diabetes mellitus type 2. FINDINGS OF FACT 1. The Veteran’s COPD with history of bronchitis is proximately due to his service-connected diabetes mellitus type 2. 2. The Veteran’s coronary artery disease is proximately due to his service-connected diabetes mellitus type 2. 3. The Veteran’s peripheral vascular disease of the right lower extremity is proximately due to his service-connected diabetes mellitus type 2. 4. The Veteran’s peripheral vascular disease of the left lower extremity is proximately due to his service-connected diabetes mellitus type 2. 5. The preponderance of the evidence is against finding that asthma began during active service, or is otherwise related to an in-service injury, event, or disease. 6. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease. 7. The preponderance of the evidence is against finding that cholesterol problems began during active service, or are otherwise reflective of a disability that is related to an in-service injury, event, or disease. 8. The Veteran’s diabetes mellitus type 2 is characterized by use of oral hypoglycemic agents and restricted diet, but is not characterized by requiring insulin, regulation of activities, episodes of ketoacidosis or hypoglycemic reactions, or twice-a-month visits to a diabetic care provider. CONCLUSIONS OF LAW 1. The criteria for service connection for COPD as secondary to diabetes mellitus type 2 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for service connection for coronary artery disease as secondary to diabetes mellitus type 2 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for peripheral vascular disease of the right lower extremity as secondary to diabetes mellitus type 2 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for peripheral vascular disease of the left lower extremity as secondary to diabetes mellitus type 2 have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for service connection for cholesterol problems have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 8. The criteria for an initial disability rating in excess of 20 percent for diabetes mellitus type 2 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1967 to July 1969. A hearing was not requested. In November 2016, the RO granted service connection for neuropathy of the right and left lower extremities at initial ratings of 10 percent. The Veteran timely filed a notice of disagreement, but a statement of the case has not issued and the appeal has not been perfected to the Board. For these reasons, the Board will not at this time assume jurisdiction over any increased rating claims associated with neuropathy of the right and left lower extremities. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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 on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 447–48. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512–14 (1998). 1. Entitlement to service connection for COPD with history of bronchitis, to include as secondary to diabetes mellitus type 2 The Veteran is entitled to service connection for COPD as secondary to his service-connected diabetes mellitus type 2. The first element is satisfied, in that a March 2018 private medical opinion indicates a current diagnosis of COPD. The nexus element is also satisfied. The March 2018 private examiner describes the Veteran’s current symptoms and notes that “diabetes can worsen the progression and prognosis of COPD which may be the result of the direct effects of hyperglycemia on lung physiology, inflammation or susceptibility to bacterial infection.” The examiner cites medical literature in support of this statement. While the Veteran has other risk factors for COPD, such as smoking and hyperlipidemia, “it is not possible to determine the degree to which risk factor[s] contributed to his conditions and it’s clear his diabetes is, in fact, among his risk factors.” For these reasons, the examiner concludes that it is at least as likely as not that the Veteran’s “diabetes contributed substantially and materially to the development of” his COPD. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). Because both elements are satisfied, the Veteran is entitled to service connection for COPD as secondary to diabetes mellitus type 2. 2. Entitlement to service connection for coronary artery disease, to include as secondary to diabetes mellitus type 2 The Veteran is entitled to service connection for coronary artery disease (CAD) as secondary to his service-connected diabetes mellitus type 2. The first element is satisfied, in that a March 2018 private medical opinion indicates a current diagnosis of CAD. The nexus element is also satisfied. The March 2018 private examiner describes the Veteran’s current symptoms and notes that “[d]iabetes is a disorder of metabolism that can also lead to heart disease and affects the heart through direct involvement in the myocardial tissue.” Additionally, “[m]edical research has repeatedly shown that people with diabetes are at . . . risk for CAD and cardiovascular disease is the leading cause of death among people with type 1 and type 2 diabetes.” The examiner cites two medical studies in support of this proposition. While the Veteran has other risk factors for CAD, such as smoking and hyperlipidemia, “it is not possible to determine the degree to which risk factor[s] contributed to his conditions and it’s clear his diabetes is, in fact, among his risk factors.” For these reasons, the examiner concludes that it is at least as likely as not that the Veteran’s “diabetes contributed substantially and materially to the development of” his CAD. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. Because both elements are satisfied, the Veteran is entitled to service connection for CAD as secondary to diabetes mellitus type 2. 3. Entitlement to service connection for peripheral vascular disease of the right lower extremity, to include as secondary to diabetes mellitus type 2 4. Entitlement to service connection for peripheral vascular disease of the left lower extremity, to include as secondary to diabetes mellitus type 2 The Veteran is entitled to service connection for peripheral vascular disease (PVD) of both lower extremities as secondary to his service-connected diabetes mellitus type 2. The first element is satisfied, in that a March 2018 private medical opinion indicates a current diagnosis of PVD for both lower extremities. The nexus element is also satisfied. The March 2018 private examiner describes the Veteran’s current symptoms and notes “that the risk of PVD is increased in diabetic patients, occurs earlier and is often more severe and diffuse.” Also according to the examiner, “[i]t is consistently stated that attempts at treatment and prevention of PVD should be initiated as soon as possible at the onset of diabetes mellitus,” and the examiner cites medical literature in support of this statement. While the Veteran has other risk factors for PVD, such as smoking and hyperlipidemia, “it is not possible to determine the degree to which risk factor[s] contributed to his conditions and it’s clear his diabetes is, in fact, among his risk factors.” For these reasons, the examiner concludes that it is at least as likely as not that the Veteran’s “diabetes contributed substantially and materially to the development of” his PVD. These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. Because both elements are satisfied, the Veteran is entitled to service connection for PVD of both lower extremities as secondary to diabetes mellitus type 2. In reaching these conclusions, the Board has considered the June 2016 VA addendum opinion, the entirety of which reads as follows: “Given that he most probably has smoked and has hyperlipidemia, most probably the peripheral vascular disease is secondary to those.” The March 2018 private opinion is entitled to greater probative value, as the conclusion of the private opinion is premised on a stronger rationale. For this reason, the June 2016 VA addendum opinion does not by itself support a denial of entitlement to service connection for PVA as secondary to diabetes mellitus type 2. 5. Entitlement to service connection for asthma 6. Entitlement to service connection for hypertension 7. Entitlement to service connection for cholesterol problems Regarding the Veteran’s remaining claims, the first element is satisfied for each claim, in that VA medical records indicate current or prior diagnoses of asthma, hypertension, and cholesterol problems. See December 2017 VA medical record (listing “[b]enign essential hypertension” as part of the Veteran’s “Past Medical History”); March 2016 VA medical record (indicating treatment for cholesterol with Simvastatin); April 2002 VA medical record (indicating “[a]sthma for many years”). Unfortunately, service connection must be denied because there is no lay or medical evidence of in-service occurrence for these diseases so as to support entitlement to service connection on a direct basis. Furthermore, there is no lay or medical argument, including in the March 2018 private medical opinion, regarding entitlement to service connection for any such disorder as secondary to a service-connected disorder. Because the preponderance of the evidence is against the existence of an in-service disease, injury, or incident and there is no argument supporting secondary service connection for these disorders, the claims must be denied. The Board further notes that the Veteran’s May 2015 VA diabetes examination does not list hypertension as a disease associated with his service-connected diabetes. Additionally, regarding high cholesterol, the primary criterion for a grant of service connection is that the Veteran have a current disability. Regardless of whether the Veteran has been treated for elevated cholesterol, such a finding is not recognized as a disability for VA benefits purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not disabilities). The reason for this is that for VA purposes, “disability” refers to impairment of earning capacity and Congress specifically limits entitlement to service connection for disease or injuries that have resulted in a disability. See 38 U.S.C. § 1110; Allen v. Brown, 7 Vet. App. 439 (1995). The Board must also deny the Veteran’s cholesterol claim because a finding of high cholesterol is merely a laboratory finding and not a “disability” for which VA compensation benefits may be awarded. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive of an issue, the matter on appeal must be terminated or denied as without legal merits). Increased Rating 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. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 8. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type 2 On October 29, 2014, the Veteran filed a claim of entitlement to service connection for diabetes mellitus type 2. In May 2015, the RO granted service for this disorder at an initial rating of 20 percent under Diagnostic Code 7913 from the date that the claim was filed. The Veteran is appealing the rating aspect of that decision. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). Diagnostic Code 7913 provides compensation for diabetes mellitus. 38 C.F.R. § 4.119. Under that code, a 10 percent rating is provided for diabetes mellitus requiring a restricted diet only. Id. A 20 percent rating is provided for diabetes mellitus requiring insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. Id. A 40 percent rating is provided for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. Id. A 60 percent rating is provided 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. Id. A 100 percent rating is provided for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations 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. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). 38 C.F.R. § 4.119. Non-compensable complications are considered part of the diabetic process under Diagnostic Code 7913. Id. “Regulation of activities” is defined as being required to “avoid[ ] strenuous occupational and recreational activities.” 38 C.F.R. § 4.119, Diagnostic Code 7913. Medical evidence is required to support the “regulation of activities” criterion of a 40 percent disability rating. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The Veteran’s symptoms are consistent with a 20 percent rating. The Veteran’s May 2015 VA diabetes examination states that the Veteran is on restricted diet and is prescribed oral hypoglycemic agents but does not require regulation of activities as part of medical management of diabetes. He visits his diabetic healthcare provider less than twice a month ketoacidosis or hypoglycemia. There have been no hospitalizations for ketoacidosis or hypoglycemia. His diabetic disorder does not impact his ability to work. Regarding insulin use, the Veteran appears to have only required insulin during two periods of hospitalization and for a short time after the second period. The May 2015 VA diabetes examination states that he does not require insulin. March 2016 VA medical records (received 5/19/16, pages 24-27 of 117) list insulin as an inpatient medicine but state that the Veteran is not being discharged on insulin. December 2017 VA medical records (received 9/13/18, page 140 of 607) list insulin as an inpatient medicine and state that the Veteran is being discharged on insulin. But a September 2018 VA medical record (received 9/13/18, page 10 of 607) states that the Veteran is “not on insulin” and that his diabetes is “well controlled.” As there are no indications of consistent outpatient use of insulin outside of the December 2017 VA medical records, the preponderance of the evidence is against a finding that the Veteran’s diabetes disorder requires insulin. Taken together, there is evidence of restricted diet and use of oral hypoglycemic agents. The preponderance of the evidence is against the existence of any other criteria enumerated in Diagnostic Code 7913. The evidence more nearly approximates the Veteran’s current rating of 20 percent. In reaching these conclusions, the Board has considered the November 2014 statements from family members, which state that the Veteran’s health issues prohibit him from participating in in activities requiring even minimal physical exertion. The Veteran’s family members are competent to testify regarding these symptoms because they are within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no reason to question their credibility. Unfortunately, the more competent and persuasive medical evidence reflects otherwise. Camacho, 21 Vet. App. at 364. For this reason, the Veteran’s lay statements do not by themselves support an initial rating in excess of 20 percent. The evidence does not support additional staged ratings for any time period on appeal. For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code. REASONS FOR REMAND 1. Entitlement to service connection for shaking of the hands A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for shaking hands. Regarding the first element, the Board finds that the Veteran is considered competent to testify that his hands shake, as reflected in the language of his claim. Also, a right-hand tremor is noted in VA medical records dated April 2018 (received 9/13/18, page 366 of 607) and August 2018 (received 9/13/18, page 19 of 607). Regarding the second element, October 1968 service treatment records (received 3/6/15, pages 11 and 14 of 52) indicate chemical burns to the Veteran’s left hand. Regarding the third and fourth elements, there is an indication that a hand tremor could be related to chemical burns, but there is insufficient evidence of record by which the Board can make a decision. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 2. Entitlement to an increased level of special monthly compensation is remanded. The Veteran seeks an increased level of special monthly compensation. The ratings assigned by the RO for the Veteran’s COPD, coronary artery disease, and peripheral vascular disease could have an impact of his level of special monthly compensation. For this reason, a decision on this claim would be premature at this time. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from September 2018 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to an earlier effective date for the grant of service connection for diabetes mellitus type 2. The Board notes that the Veteran has expressed disagreement with the effective date assigned by the May 2015 rating decision for the grant of service connection of October 29, 2014. See March 2016 notice of disagreement. The Veteran was not furnished with a statement of the case. Therefore, the Board finds that this matter should be remanded for the issuance of an appropriate statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: 1. Issue a statement of the case with respect to the May 2015 assignment of an effective date of October 29, 2014, for the grant of service connection for diabetes mellitus type 2. Do not return this matter to the Board unless the Veteran submits a timely VA Form 9 with respect to this matter. 2. Obtain all VA treatment records from September 2018 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed hand shaking. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed hand shaking disorder; (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current or previously-diagnosed hand shaking disorder was incurred in the Veteran’s service, including but not limited to as a result of chemical burns. In rendering these opinions, the examiner should consider the October 1968 service treatment records (received 3/6/15, pages 11 and 14 of 52) indicating chemical burns to the Veteran’s left hand. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel