Citation Nr: 18149800 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-32 168 DATE: November 13, 2018 ORDER Entitlement to service connection for chronic kidney disease as secondary to service-connected diabetes mellitus (DM), type II is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) is granted. As new and material evidence has been received, the claim of entitlement to service connection for hypertension due to herbicide exposure, to include as secondary to service-connected DM, type II is reopened; the appeal is granted to this extent only. Entitlement to an initial evaluation in excess of 10 percent for DM, type II is denied. REMANDED Entitlement to service connection for hypertension due to herbicide exposure, or as secondary to service-connected diabetes mellitus, type II is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his chronic kidney disease is aggravated beyond its natural progression by his service-connected DM, type II. 2. The Veteran has PTSD and MDD which are at least as likely as not related to his combat service in the Republic of Vietnam. 3. The Veteran’s claim of entitlement to service connection for hypertension, was denied in a December 1996 rating decision; the Veteran did not appeal the decision. 4. Evidence received since the December 1996 rating decision is neither cumulative or redundant, relates to an unestablished fact necessary to establish the claim, and raises a reasonable possibility of substantiating the claim. 5. Throughout the appeal period, the Veteran’s DM has been managed by a restricted diet, but has not required insulin or an oral hypoglycemic agent. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for chronic kidney disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for service connection for PTSD and MDD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The December 1996 rating decision that denied entitlement to service connection for hypertension is final; new and material evidence has been received to reopen this matter. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria for a rating in excess of 10 percent for DM, type II are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to June 1971 with service in the Republic of Vietnam from November 1969 to October 1970. The Veteran was awarded the Combat Infantry Badge, among other service awards. This matter comes before the Board on appeal from December 2014 and August 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In the December 2014 rating decision, the RO denied service connection for PTSD. In the August 2015 rating decision, the RO denied the increased rating claim for DM, type II, service connection for chronic kidney disease, and declined to reopen the service connection claim for hypertension. A videoconference hearing was held in August 2018 before the undersigned Veterans Law Judge. As a preliminary matter, in an October 2015 Statement in Support of Claim, the Veteran asserted that he is on dialysis for chronic kidney failure and is unable to work. Per this Board decision, the Veteran is granted secondary service connection for chronic kidney disease, which is considered a full grant of benefits. As such, the Veteran and his representative should be contacted and informed that if the Veteran seeks to make such a claim regarding his unemployability due to service-connected disability, that effective March 24, 2015, a claimant for VA benefits must file a claim on the application form prescribed by the Secretary to be considered. See Standard Claims and Appeals Forms final action at 79 Fed. Reg. 57,660 (Sept. 25, 2014). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). Generally, to establish entitlement to service connection, a veteran must show evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and an in-service injury or disease. All three elements must be proved. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, any increase in severity of a nonservice-connected disease or injury which is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310(a)-(b). In order to prevail on the theory of secondary service connection, there must be evidence of (1) a current disability, (2) a service-connected disability, and (3) a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. §3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for chronic kidney disease as secondary to service-connected DM, type II Resolving doubt in the Veteran’s favor, the Board finds that the Veteran’s chronic kidney disease is aggravated beyond natural progression due to his service-connected DM, type II. A review of the medical evidence of record indicated that private treatment records dated from January 2007 to May 2010, note the Veteran’s diagnosed DM with renal manifestation. Notably, a June 2008 private treatment note indicated that the Veteran was diagnosed with chronic kidney disease, stage II, probably multifactorial due to hypertension, diabetes, metabolic syndrome and uric acid. In a September 2014 private treatment summary, Dr. J. L. noted the Veteran’s stage IV chronic kidney disease diagnosis. The Veteran’s impaired fasting glucose diagnosis was also noted. In Dr. J. L.’s judgement, the Veteran’s chronic kidney disease is most likely due to hypertensive glomerulosclerosis and is less likely due to diabetic nephrology caused by impaired fasting glucose. Dr. J. L. explained that there was no reported diabetic retinopathy, which usually precedes nephropathy. A December 2014 Kidney Conditions Disabilities Benefits Questionnaire (DBQ) noted the Veteran’s diagnosed renal dysfunction. A December 2014 Diabetes Mellitus DBQ noted the Veteran’s impaired fasting glucose diagnosis. Dr. E. S. subsequently diagnosed the Veteran with renal insufficiency that pertains to DM or it complications. Dr. E. S. determined that the Veteran’s renal disease is at least as likely as not permanently aggravated by his DM. An August 2015 VA Diabetes Mellitus examination noted the Veteran’s DM diagnosis. The examiner rendered the clinical assessment that the Veteran’s renal disease is at least as likely as not permanently aggravated, beyond natural progress, by the Veteran’s DM. The examiner explained that the Veteran did not meet the criteria for DM until 2010 when he had a second A1C level of 6.5 The examiner added that the Veteran was diagnosed with chronic kidney disease prior to 2010; therefore, it is less likely as not that the Veteran’s chronic kidney disease is due to the Veteran’s diabetes. The examiner, however, emphasized that since the Veteran was diagnosed with diabetes, his renal function has markedly declined. In the examiner’s judgement, it is at least as likely as not that the Veteran’s renal disease is aggravated beyond natural progression by his diabetes. In an August 2015 VA addendum medical opinion, Dr. W. O., opined that the Veteran was diagnosed with chronic kidney disease in 2008, which has progressed to stage IV chronic kidney disease. Dr. W. O. posited that the veteran’s chronic kidney disease began prior to the Veteran’s 2010 DM, type II diagnosis and has been attributed to the Veteran’s long history of essential hypertension since the age of 20. According to Dr. W. O., chronic kidney disease due to long standing hypertension is a progressive condition that will naturally worsen with aging. Dr. W. O. noted that the Veteran’s chronic kidney disease is consistent with long standing hypertension. In the Dr. W. O.’s judgement, the rationale for the prior August 2015 medical opinion attributing the Veteran’s chronic kidney disease to his service-connected DM was “incomplete”. Dr. W. O. rendered the clinical assessment that although the Veteran’s renal function has declined since the Veteran was diagnosed with DM, it cannot be simply assumed that this decline must be a result of DM. According to Dr. W. O., the prior August 2015 medical opinion did not address other potential explanations for the decline in the Veteran’s renal function, including his long-standing hypertension. Dr. W. O. added that when the Veteran’s long-standing hypertension is considered, as well as the severity of the Veteran’s hypertension compared to the severity of his DM, it “becomes clear” that the progression of the Veteran’s chronic kidney disease to stage IV chronic kidney disease is most likely a result of natural progression, without any significant aggravation from the Veteran’s service-connected DM. Dr. W. O. went on to list factors, such as the Veteran’s hypertension diagnosis “47 years ago” and the severity of the Veteran’s hypertension as causative factors that aggravate the Veteran’s chronic kidney disease beyond natural progression. Dr. W. O. emphasized that the Veteran was diagnosed with DM “in 2010 that has been present for 5 years”. The Board notes that the medical evidence of record suggests that the Veteran was diagnosed with DM with renal manifestation as early as January 2007. An August 2017 VA treatment note indicated that the Veteran had end stage renal disease and was on dialysis due to DM, type II. A February 2018 VA treatment note included early stage renal disease secondary to DM in the Veteran’s medical history. In a July 2018 VA treatment letter, Dr. J. A. opined that the Veteran’s diabetes contributed to his chronic kidney disease. During the August 2018 hearing, the Veteran testified that Dr. J. A. of the Maui VA clinic attributed his chronic kidney disease to DM. Upon review of the record evidence, the Board finds that there is an approximate balance of positive and negative medical opinion evidence regarding the Veteran’s service connection claim. In instances where reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court reiterated in Wise that “[b]y requiring only an ‘approximate balance of positive and negative evidence’ to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990)). The Board finds that reasonable doubt should be resolved in favor of the Veteran. Accordingly, the Board finds that secondary service connection for chronic kidney disease is warranted. 2. Entitlement to service connection for an acquired psychiatric condition, to include PTSD and MDD Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) medical evidence of a link between current symptomatology and the claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. §§ 3.304 (f), 4.125(a); see Cohen v. Brown, 10 Vet. App. 128 (1997). The Board finds that the Veteran has PTSD and MDD due to combat service in Vietnam. The Veteran’s military personnel records indicated that he served in Vietnam from November 1969 to October 1970 and was awarded the Combat Infantry Badge. On VA outpatient treatment in April 2003, the Veteran was diagnosed with mild PTSD/grief. An April 2004 VA treatment note indicated that he was diagnosed with depressive symptoms. From October 2013 to January 2014, the Veteran attended therapy sessions for PTSD symptoms at the Vet Center. During treatment, the Veteran reported that he was drafted in 1969 to the Vietnam War. The Veteran reported that he was an 11B infantryman, witnessed a helicopter crash and fellow service men burned to death in the crash, recovered bodies and was “hit with friendly fire”. In a February 2014 statement, Sgt. R. A. asserted that he served as an infantryman with the Veteran in the American Division (23rd Infantry), 2nd Platoon, Charlie Company, 198th Light Infantry Brigade, 1/52 Battalion from July 1969 to April 1970. Sgt. R. A. asserted that the unit participated in patrols, night ambushes and “chopper” combat assaults engaging the enemy. Sgt. R. A. asserted that the unit was under attack with small arms fire, AK-47s, rocket propelled grenades, mortar rounds and encountered “boobie traps” “all over the place”. Sgt. R. A. asserted that he and the Veteran served as replacements for service members killed or wounded in action and feared for their lives “all day, every day, 24/7”. Sgt. R. A. shared that in April 1970, he was severely wounded, along with other soldiers from the squad, and that the Veteran helped him board an evacuation helicopter. In a May 2014 Statement in Support of Claim for Service Connection for PTSD, the Veteran asserted that his combat experience caused fear, anger, depression, guilt, intrusive thoughts, nightmares, problems with trust and relationships, isolative behavior, anxiety and increased disregard for military and civilian authority. The Veteran’s reported stressors were that he was placed on guard duty with a weapon he had never fired; his division was deployed to “Rocket Pocket” an area known for rocket attacks; he sustained friendly fire casualties (three friendly fire attacks in February 1970); underwent helicopter assaults; witnessed a helicopter crash and burst into flames; observed service members burned/severely injured (his close friend died) and retrieved bodies from the crash site. The Veteran disclosed that “a part of [him] died . . . that day”. In support of his service connection claim, the Veteran submitted an article, “CO and Charlie Company 1st-52nd Assault Sappers” that reported a successful assault on enemy sappers by several U.S. infantrymen. The Veteran’s military personnel records indicated that he served with the above-mentioned unit. In a May 2014 statement, T. W. asserted that he also served with the Veteran in Vietnam. According to T. W., their unit had heavy contact with the North Vietnamese Army and the Viet Cong. T. W. asserted that the unit was under heavy fire, mortar and rocket propelled grenade attacks. T. W. asserted that the Veteran “performed with the utmost courage”. A November 2014 VA PTSD examination indicated that the Veteran did not have PTSD or any mental disorder that conforms to Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) criteria. During the examination, the Veteran reiterated his in-service stressors. The examiner opined that the Veteran meets Criterion A to support the diagnosis of PTSD and that his stressors were related to fear of hostile military or terrorist activity. Conversely, the examiner also determined that the Veteran does not meet the DSM 5 criteria for PTSD due to insufficient Criteria C-avoidance symptoms, Criteria D-negative alterations in mood, or Criteria G-clinically significant distress or impairment in social, occupational or life functioning. The examiner explained that a wide range of clinical literature shows that the great majority of persons exposed to Criteria A stressors, including combat veterans, do not develop full or chronic PTSD symptoms. The examiner added that a more typical pattern is immediate symptoms that resolve to baseline or near baseline function over a relatively short period of time. In the examiner’s judgment, the Veteran fits into that pattern and is like most of those veterans that do not have PTSD despite exposure to Criteria A stressors. According to the examiner, the Veteran appears to have adapted well and recovered with minimal impairment in functioning and does not meet the clinical criteria for a PTSD diagnosis. The examiner ultimately concluded that the Veteran appears to have the resiliency, coping skills and strength to recover from experienced stressors and to have not developed full or chronic PTSD. A June 2016 VA mental health initial consultation note indicated that the Veteran was diagnosed with “DSM-5 PTSD-combat related” and MDD. The examiner noted the Veteran’s positive PTSD screen and his reported combat related stressors. A review of the VA treatment records indicated that from July 2016 to March 2017, the Veteran attended supportive psychotherapy sessions and his “PTSD from combat in Vietnam” medical history was noted. During the August 2018 hearing, the Veteran testified that Dr. D. at the Maui VA clinic diagnosed him with PTSD. In light of the foregoing, namely, the Veteran’s receipt of the Combat Infantry Badge, the cumulative treatment records indicating PTSD and MDD diagnoses due to military service, the Veteran’s lay assertions, and statements from the Veteran’s fellow service members, the criteria for the establishment of service connection for PTSD and MDD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. New and Material Evidence Generally, a claim which has been denied in a Board decision or an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA must review all the evidence submitted since the last final rating decision to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the “presumption of credibility” doctrine continues to be precedent). The presumption is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). By way of brief procedural history, the RO denied the Veteran’s initial claim for service connection for hypertension in a December 1996 rating decision on the basis that the Veteran’s hypertension was not shown as incurred in or caused by active military service and did not manifest to compensable degree within the one-year presumptive period after separation. The Veteran was notified of the denial by a December 1996 letter; he did not appeal the issue and did not submit any pertinent evidence within one year of the decision. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per § 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The December 1996 rating decision is accordingly final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. The Veteran subsequently sought to reopen the service connection claim for hypertension in March 2015. The RO afforded the Veteran a VA examination in August 2015. In an August 2015 rating decision, the RO declined to reopen the previously denied service connection claim because no new and material evidence had been received. The Board acknowledges that the RO implicitly reopened and adjudicated the issue on the merits in the August 2015 rating decision. Despite the determination reached by the RO, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim with respect to this issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The relevant evidence added to the record since the December 1996 rating decision (last final denial) includes a December 2014 Diabetes Mellitus DBQ that indicated that the Veteran’s hypertension is at least as likely as not caused by his service-connected DM. The relevant lay evidence includes the October 2015 Notice of Disagreement (NOD), the June 2016 substantive appeal (VA Form 9) and the August 2018 hearing transcript, in which the Veteran provided additional details regarding the circumstances surrounding his belief that his claimed hypertension is related to his service-connected DM. Thus, the medical and lay evidence raises a reasonable possibility of substantiating the service connection claim for hypertension and is sufficient to reopen the claim. 38 C.F.R. § 3.156(a). As such, the Board finds that new and material evidence has been presented to reopen the previously denied claim of entitlement to service connection for hypertension. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 Under DC 7913, a 10 percent evaluation is warranted for DM manageable by a restricted diet only. A 20 percent evaluation is warranted for DM requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. A 40 percent evaluation is warranted for DM requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is warranted for DM 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 evaluation is warranted for DM 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. Compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. See Note (1) to 38 C.F.R. § 4.119, DC 7913. The Court has held that, to demonstrate a regulation of activities, “medical evidence” is required to show that both occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). The phrase “regulation of activities” means “avoidance of strenuous occupational and recreational activities.” Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)). “Successive” rating criteria in a diagnostic code is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, a veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, DC 7913 is successive in nature because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent; the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. 3. Entitlement to an initial evaluation in excess of 10 percent for DM, type II The Veteran contends that his DM is more severe than reflected in his current disability rating. A March 2015 Diabetes Mellitus DBQ noted the Veteran’s impaired fasting glucose diagnosis. The private physician checked the “yes” box to whether the Veteran had “diabetic neuropathy or renal dysfunction” due to DM. The physician noted that the Veteran’s DM was managed by restricted diet and regulation of activities. The Veteran did not visit a diabetic care provide more than twice a month. The Veteran was hospitalized for a hypoglycemic episode once during the preceding 12 months. However, he denied any hospitalizations for ketoacidosis or any progressive unintentional weight loss or loss of strength. An August 2015 VA Diabetes Mellitus examination noted the Veteran’s 2010 diagnosis of DM, type II. The Veteran reported that he was diagnosed with DM in 2005 and prescribed Metformin. The examiner noted that the Veteran managed his DM with a restricted diet. The Veteran did not require regulation of activities as part of medical management. The Veteran did not visit a diabetic care provider for episodes of ketoacidosis or hypoglycemia more than twice a month and was not hospitalized for DM complications. The Veteran had progressive unintentional weight loss and loss of strength due to DM. In the October 2015 NOD, the Veteran contended that he takes oral medication and has a restricted diet due to DM. On the June 2016 VA Form 9, the Veteran asserted that he maintains a restricted diet and restricted activities due to DM. A June 2016 VA treatment note indicated that the Veterans DM is controlled by diet and exercise. A June 2017 VA treatment note indicated that the Veteran’s diabetic renal examination showed that his diabetes resolved once he began peritoneal dialysis. During a subsequent VA medical appointment, the Veteran asserted that he was told to “prove he had diabetes” because his “blood sugars were good”. VA treatment records dated August 2017 to January 2018, include the Veteran’s “DM, type II controlled by diet” on the active problem list. During the August 2018 hearing, the Veteran testified that he takes Metformin for DM. Having carefully considered the Veteran’s contentions in light of the evidence of record and the applicable law, the Board finds that the criteria for a rating in excess of 10 percent for DM, type II are not met. In this regard, the Board notes that to warrant a higher rating under DC 7913, the evidence must show DM requiring either insulin and restricted diet or an oral hypoglycemic agent and restricted diet. Here, there is no question that the Veteran’s DM was managed with a restricted diet, but there is no persuasive evidence that the Veteran’s DM required insulin or a hypoglycemic agent throughout the appeal period. The March 2015 and August 2015 examinations indicated that the Veteran’s DM was managed with a restricted diet. While the March 2015 physician also noted that the Veteran’s DM was managed by regulation of activities, the physician did not list an example of a restricted activity. The August 2015 VA examination report noted a positive response to “a progressive unintentional weight loss and strength loss due to DM.” Crucially, the Veteran’s VA treatment records, including records dated from 2009 to the present show the Veteran was diagnosed as being “overweight/obese” and was in fact encouraged to undergo lifestyle modifications to treat his health conditions, including sleep apnea. Records dated in 2017 and 2018 show the Veteran as a participant in VA’s MOVE program (a weight loss program). Thus, the Veteran does not require a “regulation of activities” to control his diabetes, and his weight loss has been intentional. Moreover, VA treatment records dated June 2016 through the present noted that the Veteran’s DM is controlled by a restricted diet. Indeed, the June 2017 VA treatment note indicates that the Veteran’s DM resolved once he began peritoneal dialysis. All in all, the cumulative medical evidence of record suggests that the Veteran’s DM was managed by a restricted diet and did not require insulin or a hypoglycemic agent for management. The Board has considered the Veteran’s argument that he meets the criteria for a 20 percent rating because he was initially prescribed an oral hypoglycemic agent, Metformin, as early as 2005. Such an interpretation of the rating criteria is inconsistent with the regulatory intent of DC 7913, which supports the view that the degree of impairment from DM should be determined according to how well the disease is controlled. See Camacho v. Nicholson, 21 Vet. App. 360, 365 (2007) (citing 58 Fed. Reg. 5691, 5693 (Jan. 22, 1993)); see also Middleton v. Shinseki, 727 F.3d 1172, 1177 (Fed. Cir. 2013) (holding that the plain language of DC 7913 reciting the criterion “[r]equiring insulin” for each of the 20% and 40% ratings “clearly requires that the [V]eteran is administered insulin”). The evidence in this case clearly shows that the Veteran was controlling his diabetes without the use of insulin or an oral hypoglycemic agent throughout the course of the appeal period. VA treatment records and the March 2015 Diabetes Mellitus DBQ suggest that the Veteran’s DM was not being managed by medication, but rather by a restricted diet. The Board acknowledges that the Veteran is competent to report his DM symptoms and treatment methods. See 38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). However, as a lay person without appropriate medical expertise, the Veteran is not competent to provide an opinion as to evaluating the severity of his DM and the necessary treatment methods needed to manage the condition, i.e., a restricted diet versus insulin/oral hypoglycemic agents See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The Board finds that the VA examination reports, indicating that the Veteran’s DM was managed by diet alone, but not by use of insulin or oral hypoglycemic agents, combined with treatment records reflecting the same, is the most probative evidence of record on the issue. As such, the competent medical evidence of record is against a finding that the Veteran required insulin or an oral hypoglycemic agent to control his DM. Accordingly, a rating in excess of 10 percent is not warranted. REASONS FOR REMAND 4. Entitlement to service connection for hypertension due to herbicide exposure or as secondary to service-connected DM, type II is remanded. The Veteran contends that he has hypertension due to herbicide exposure, or secondary to service-connected DM. An opinion regarding the Veteran’s DM theory of entitlement has been obtained. Additionally, the Veteran’s service treatment records (STRs) indicated that his 1969 pre-induction Report of Medical Examination did not suggest a hypertension diagnosis; his blood pressure was 136/84. On the Report of Medical History, the Veteran endorsed hypertension 3 years prior to induction and that he did not take any medication for hypertension. During the course of the Veteran’s active duty service, his STRs did not reflect a hypertension diagnosis. The Veteran’s March 1971 separation Report of Medical Examination also did not include a hypertension diagnosis; his blood pressure was 128/78. On the Report of Medical History, the Veteran endorsed “yes” for “high or low blood pressure.” The Board notes the Veteran’s combat service in Vietnam and his presumptive herbicide exposure. An addendum medical opinion is required to decide the appeal. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s hypertension. The examiner should render an opinion, consistent with sound medical judgment: (a.) In light of the National Academy of Science’s elevation of hypertension to the "Limited or Suggestive Evidence" category, is it at least as likely as not (50 percent or greater probability) that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc.? TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel