Citation Nr: 18147108 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-27 495A DATE: November 2, 2018 ORDER Entitlement to service connection for depressive disorder is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 20 percent for diabetes is remanded. Entitlement to an initial compensable rating for diabetic dermopathy is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his depressive disorder is proximately due to his service-connected disabilities. 2. The Veteran does not have a current PTSD diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, nor has he had such a diagnosis at any time during the pendency of this claim. CONCLUSIONS OF LAW 1. The criteria to establish secondary service connection for depressive disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.310(a) (2018). 2. The criteria to establish service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 4.125 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had service from April 1968 to December 1969. The Veteran initially filed claims for service connection for PTSD and depression. However, a service connection claim for a mental disability may include claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As a result, the Board has taken an expansive view of the Veteran’s claim pursuant to Clemons. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. The Board notes the Veteran and his attorney initially also appealed the effective date for the grant of service connection for diabetic dermopathy and diabetic peripheral neuropathy of the bilateral upper and lower extremities; however, the Veteran explicitly limited his appeal to those service connection and increased rating claims on his June 2016 Substantive Appeal. Accordingly, the effective date claims are no longer on appeal and will not be addressed herein. 1. Entitlement to service connection for a psychiatric disorder, to include depression and PTSD. The Veteran contends that he developed a psychiatric disorder as a result of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. Once established, a secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to a service-connected disability. See Velez v. West, 11 Vet. App. 148, 158 (1998); Wallin v. West, 11 Vet. App. 509, 512 (1998). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated on a secondary basis for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997. In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board has an inherent fact-finding ability. Id. at 1076. The United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The initial question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progress by a service-connected disability. The evidence of record shows that no diagnosis of PTSD was rendered in accordance with the DSM, and the February 2013 VA examiner specifically opined that the Veteran did not have an Axis I diagnosis of PTSD. Likewise, the October 2016 private examination did not provide an Axis I DSM V diagnosis of PTSD. Thus, the Board concludes that the Veteran does not have a diagnosis of PTSD that meets the regulatory requirements for that disability for VA compensation purposes. The Board finds that the preponderance of the evidence is against the Veteran’s claim; therefore, the benefit of the doubt provision does not apply. As the threshold requirement of a current diagnosis of the disability claimed is not met, service connection for PTSD must be denied. The Board concludes that the Veteran has a current diagnosis of depression that is related to service-connected diabetes, diabetic peripheral neuropathy of the bilateral upper and lower extremities, erectile dysfunction, and diabetic dermopathy. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The October 2016 private treatment records show the Veteran has a current diagnosis of depressive disorder due to another medical condition with depressive features. The private examiner noted that the Veteran did not have more than one diagnosis for a psychiatric disorder. The private examiner opined that the Veteran’s depressive disorder is at least as likely as not proximately due to or the result of his service-connected disabilities. The rationale was that the Veteran’s service-connected diabetes, diabetic peripheral neuropathy of the bilateral upper and lower extremities, erectile dysfunction, and diabetic dermopathy have caused the depressive disorder. The Board finds this medical opinion highly probative of a positive nexus between the Veteran’s current diagnosis and his service-connected disabilities because it not only contains a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As a result, the preponderance of the evidence is in favor of finding that the Veteran has a current diagnosis for depressive disorder that is related to service-connected disabilities. Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for depression as secondary to service-connected diabetes, diabetic peripheral neuropathy of the bilateral upper and lower extremities, erectile dysfunction, and diabetic dermopathy is warranted and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran previously received a VA examination for hypertension in December 2014; however, no rationale was provided for the opinions rendered. As to the claim of service connection for hypertension, given the diagnosis found in the record, the Veteran’s documented service in the Republic of Vietnam during the Vietnam Era and his presumptive herbicide exposure, the National Academy of Sciences (NAS) finding of a “limited or suggestive evidence’ of an association between hypertension and exposure to herbicides (see 79 Fed. Reg. 20,308 (Apr. 11, 2014)), the Court’s holding in Stefl v. Nicholson, 21 Vet. App. 120 (2007) that the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation, and the Veteran’s claim that his hypertension is secondary to a service-connected disability, the Board finds that a remand is required to provide the Veteran with a VA examination to obtain needed etiology opinions. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disability. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The record also indicates that the Veteran has received Social Security Disability benefits since 2004. These records should be requested and associated with the file. 2. Entitlements to initial ratings in excess of 20 percent for diabetes, in excess of 20 percent for left and right upper extremity diabetic peripheral neuropathy, in excess of 10 percent for left and right lower extremity diabetic peripheral neuropathy, a compensable rating for diabetic dermopathy, and a total disability rating based on individual unemployability due to service-connected disabilities are remanded. The Veteran contends that his service-connected diabetes, diabetic dermopathy, and diabetic peripheral neuropathy of the bilateral upper and lower extremities are worse than the currently assigned ratings reflect. Moreover, there is evidence in the claims file indicating that the Veteran’s disabilities may have worsened since his last VA examinations of record in December 2014. However, the Board is without the expertise necessary to determine the extent of worsened symptoms exhibited by the Veteran’s disabilities. “VA regulations specifically require the performance of a new medical examination... [when] ‘evidence indicated there has been a material change in a disability or that the current rating may be incorrect.’” Caffrey v. Brown, 6 Vet. App. 377, 381 (quoting 38 C.F.R. § 3.327(a)) (1994). Accordingly, the Board finds that the Veteran’s claims should be remanded to provide him with an updated examination to accurately assess the current condition of the disabilities. In claims for a rating increase, it is first and foremost a priority to ensure that the most current assessment of the service-connected disability picture is of record. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Furthermore, the claims for higher initial ratings for diabetic dermopathy and peripheral neuropathy of the bilateral upper and lower extremities are inextricably intertwined with the claim for a higher initial rating for diabetes, as the disability benefits questionnaire for diabetes includes questions related to symptoms of radiculopathy and the skin. Likewise, TDIU is inextricably intertwined with the claims for higher ratings and service connection for hypertension, and is therefore remanded as well. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA’s actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must opine on the following: (a.) whether it is at least as likely as not related to an in-service injury, event, or disease including the Veteran’s presumptive herbicide exposure. (b.) whether it at least as likely as not (1) began during active service, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) whether it is at least as likely as not proximately due to a service-connected disability, to include medication used to treat a service-connected disability. (d.) whether it is at least as likely as not aggravated beyond its natural progression by a service-connected disability, to include medication used to treat a service-connected disability. In providing answers to the above questions, the examiner should consider and discuss the NAS findings regarding limited or suggestive evidence’ of an association between hypertension and exposure to herbicides. See 79 Fed. Reg. 20,308 (Apr. 11, 2014). In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. “Aggravated” in this context refers to a permanent worsening of the pre-existing or underlying condition, as opposed to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. 3. Schedule the Veteran for examinations by an appropriate clinician to determine the current severity of his service-connected diabetes, diabetic dermopathy, and diabetic peripheral neuropathy of the bilateral upper and lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. For each disability, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due each individual disability and separately discuss the effects of each service-connected disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Connally, Counsel