Citation Nr: 18148486 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 12-16 870 DATE: November 7, 2018 ORDER Entitlement to service connection for right ear hearing loss is dismissed. Entitlement to a rating in excess of 10 percent for diabetes mellitus with erectile dysfunction for the period prior to January 26, 2016 is denied. Entitlement to an effective date earlier than October 5, 2015 for the award of service connection for diabetes mellitus with erectile dysfunction is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for residuals of a subdural hematoma, including hematomyelia, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal for entitlement to service connection for right ear hearing loss. 2. Prior to January 26, 2016, the Veteran’s diabetes mellitus was managed by restricted diet only. 3. The Veteran was diagnosed with diabetes mellitus in August 2014. 4. The Veteran was diagnosed with diabetes in August 2014 and his claim for service connection was first received by VA on October 5, 2015. There is no other statement, communication or other document from the Veteran prior to October 5, 2015 that can be construed as a claim for service connection for diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal have been met for the issue of entitlement to service connection for right ear hearing loss. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017) 2. For the period prior to January 26, 2016, the criteria for a rating in excess of 10 percent for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.119, Diagnostic Code 7913 (2017). 3. The criteria for an effective date earlier than October 5, 2015 for the award of service connection for diabetes mellitus with erectile dysfunction have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to April 1971. He received the National Defense Service Medal, Vietnam Service Medal with one bronze service star, and Republic of Vietnam Campaign Medal. During the course of the Veteran’s appeal, in a November 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent rating for diabetes mellitus with erectile dysfunction effective January 26, 2016. As this decision represents a full grant of the benefit sought, see March 2016 NOD, p. 1, that stage of the rating is no longer before the Board. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disabilities prevent him from working. In this case, the record raises the issue of TDIU; thus, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. Service Connection for Right Ear Hearing Loss The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by an authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a), (b)(1). In the present case, the Veteran withdrew his appeal as to the issue of entitlement to service connection for right ear hearing loss in a letter submitted to the Board in September 2018. September 2018 Correspondence, p. 2. There remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue, and it is dismissed. Increased Rating for Diabetes Mellitus with Erectile Dysfunction The Veteran’s diabetes mellitus with erectile dysfunction has been rated under the provisions of 38 C.F.R. § 4.119, Diagnostic Code 7913. Under DC 7913, a 10 percent rating is assigned for diabetes mellitus manageable by restricted diet only. A 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is assigned 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 assigned 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. The Veteran contends that he is entitled to an increased rating for his diabetes mellitus for the period prior to January 26, 2016. The evidence demonstrates that the Veteran’s disability was manageable by restricted diet only during this period. The Veteran underwent a VA examination in December 2015. At this time, he reported treating his diabetes with restricted diet. The earliest medical evidence demonstrating that the Veteran required the use of oral hypoglycemic agents is dated January 26, 2016. See November 2017 CAPRI, p. 33. There is no evidence showing use of oral hypoglycemic agents prior to this date. For the period prior to January 26, 2016, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for diabetes mellitus. To receive a higher evaluation, the evidence must show that the Veteran’s disability required insulin and restricted diet, or oral hypoglycemic agent and restricted diet. The evidence for this period does not demonstrate that the Veteran required insulin or oral hypoglycemic agents, but instead was managed with restricted diet only. Accordingly, a rating in excess of 10 percent for diabetes mellitus with erectile dysfunction for the period prior to January 26, 2016 is not warranted. Earlier Effective Date for the Award of Service Connection for Diabetes Mellitus In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). For claims granted pursuant to a liberalizing law or VA administrative issue, the effective date of an award of service connection will be the effective date of the liberalizing law or VA administrative issue if the claim is received within one year after such date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. If a claim is received more than one year after the effective date of the liberalizing law or administrative issue, benefits may be authorized for a period of one year prior to the date of receipt the claim provided the Veteran met the eligibility criteria from the time the liberalizing law went into effect until the claim was filed. 38 C.F.R. § 3.114(a)(1), (3); see VanRiper v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 878 (2017). The effective date of the regulation that added diabetes mellitus as a disease presumptively due to in-service exposure to herbicides is May 8, 2001. See 66 Fed. Reg. 23,166 (May 8, 2001). In this case, the Veteran was first diagnosed with diabetes mellitus in August 2014, see November 2017 CAPRI, p. 26; however, his initial claim for service connection was not received until October 5, 2015. See October 2015 Veteran’s Supplemental Claim for Compensation, p. 1. The Veteran’s claim was not received within one year of the effective date of the liberalizing law (May 8, 2001), and the Veteran also did not have identifiable symptoms of diabetes mellitus at that time. See 38 C.F.R. § 3.114(a). Accordingly, the Board must determine the effective date in accordance with 38 C.F.R. § 3.400. See 38 C.F.R. § 3.816. As the date of receipt of the Veteran’s claim (October 5, 2015) is the later of the two dates used to determine effective dates, the Board finds that October 5, 2015 is the earliest allowable effective date under the law. The Veteran’s claim for an earlier effective date for the award of service connection for diabetes is denied. REASONS FOR REMAND Service Connection for Left Ear Hearing Loss The September 2015 Board remand directed the AOJ to obtain a new opinion on whether the Veteran’s left ear hearing loss was aggravated by his active duty service. Specifically, the examiner was required to provide an opinion that does not rely on the absence of documented hearing loss in service as the sole basis for a negative opinion. The November 2016 examiner based her negative opinion on the absence of significant changes in the Veteran’s hearing during his service. November 2016 VA Examination, p. 4. The Board finds that there has not been substantial compliance with the September 2015 remand; thus, an additional remand is necessary to obtain an opinion that fully complies with the Board’s instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1993) (finding that a Board remand confers on a claimant the right to compliance with remand orders). Service Connection for Residuals of a Subdural Hematoma, including Hematomyelia The Veteran underwent an examination in November 2016 in connection with his claim for service connection for residuals of a subdural hematoma. The examiner offered a negative opinion but failed to discuss the Veteran’s contentions or provide a supporting rationale. November 2016 VA Examination, p. 6. Consequently, a remand is needed to obtain a new opinion that is supported by a rationale and that considers the Veteran’s contentions and medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that a medical opinion that contains no supporting rationale has no probative value). The evidence of record is also unclear as to whether the Veteran has a current disability that has resulted from his past subdural hematoma. At the November 2016 VA examination, the examiner indicated that the Veteran has insomnia and decreased deep tendon reflexes, but it is unclear if these conditions are residuals of his subdural hematoma or are symptoms of other disabilities. On remand, the AOJ should seek clarification on what, if any, residuals have resulted from the Veteran’s subdural hematoma. TDIU The evidence of record is unclear as to whether the collective impact of the Veteran’s service-connected disabilities preclude substantially gainful employment. On remand, the AOJ should obtain an opinion to determine the collective impact of the Veteran’s service-connected disabilities on his ability to work. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination with an appropriate examiner to determine the nature and etiology of his left ear hearing loss. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report MUST include a discussion of the Veteran’s documented medical history and assertions. The examiner must offer comments, an opinion, and a supporting rationale that addresses whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss was aggravated by his active duty service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. It should be noted that the absence of in-service evidence of a hearing disability, or aggravation of a pre-existing disability, is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. 2. Schedule the Veteran for a new examination to ascertain the nature and etiology of the Veteran’s residuals of a subdural hematoma. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale for the following: (a) Identify all diagnoses that pertain to the Veteran’s residuals of subdural hematoma. (b) For any diagnoses, is it at least as likely as not (50 percent probability or greater) that such disability was caused by, aggravated by or is otherwise etiologically related to the Veteran’s active duty service? (c) For any diagnoses, is it at least as likely as not that such disability was caused by, aggravated by or is otherwise etiologically related to the Veteran’s service-connected residuals of a left ankle sprain? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 3. Schedule the Veteran for an examination with an appropriate examiner to ascertain the collective impact of the Veteran’s service-connected disabilities on his ability to work. If appropriate, any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the electronic claims file. The examiner should elicit and set forth the pertinent facts regarding the Veteran’s medical, education and employment history; day-to-day functioning; and, industrial capacity. The examiner should address the Veteran’s current ability to function in an occupational environment. The examination report should also indicate if there is any form of employment that the Veteran could perform and, if so, what type. A written copy of the report should be associated with the claims file. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel