Citation Nr: 18150653 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-10 049 DATE: November 15, 2018 ORDER Service connection for hypertension, secondary to service-connected diabetes mellitus type II is denied. Service connection for high cholesterol secondary to service-connected diabetes mellitus type II is denied. Service connection for a skin disorder, to include bacterial infections, fungal infections, diabetic dermopathy, necrobiosis lipoidica diabeticorum, disseminated granuloma annulare and acanthosis nigricans, secondary to service-connected diabetes mellitus type II is denied. Service connection for peripheral vascular disease, secondary to service-connected diabetes mellitus type II is denied. Service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II is denied. Service connection for a bacterial lung infection, to include as secondary to service-connected diabetes mellitus type II is denied. Service connection for chronic obstructive pulmonary disease, to include as secondary to service-connected diabetes mellitus type II is denied. An increased rating of 100 percent from March 11, 2011 and continuing thereafter for the Veteran’s service-connected coronary artery disease is granted. Special monthly compensation is granted pursuant to the provisions of 38 U.S.C. § 1114(s), since March 11, 2011. REMANDED An initial rating more than 30 percent from November 25, 1992 to September 7, 2016 and an increased rating more than 50 percent from September 8, 2016 and continuing thereafter for the Veteran’s service-connected posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension was not caused or aggravated by his service-connected diabetes mellitus type II. 2. The Veteran’s high cholesterol and lipid imbalance are not disabilities for VA purposes. 3. The Veteran does not have a current skin disorder. 4. The Veteran’s peripheral vascular disease was not caused or aggravated by his service-connected diabetes mellitus type II. 5. The Veteran does not have obstructive sleep apnea that was caused or aggravated by any service-connected disorder. 6. The Veteran does not have a current bacterial lung infection. 7. The Veteran’s chronic obstructive pulmonary disease was not caused by service or by his service-connected diabetes mellitus type II. 8. From March 11, 2011 and continuing thereafter, the Veteran had chronic congestive heart failure and a metabolic equivalent (METs) level of 1-3 that resulted in dyspnea, fatigue and angina. 9. Since March 11, 2011, the Veteran is in receipt of a 100 percent rating for coronary artery disease, and a combination of other service-connected disorders involving different anatomical segments or bodily systems ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria to establish service connection for hypertension, secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 2. High cholesterol is not a disability appropriately granted service connection as a matter of law. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 3. The criteria to establish service connection for a skin disorder, secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 4. The criteria to establish service connection for peripheral vascular disease, secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 5. The criteria to establish service connection for obstructive sleep apnea, to include as secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(d), 3.310 (2017). 6. The criteria to establish service connection for a bacterial lung infection, to include as secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(d), 3.310 (2017). 7. The criteria to establish service connection for chronic obstructive pulmonary disease, secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303(d), 3.310 (2017). 8. The criteria to establish an increased rating of 100 percent for the entirety of the rating period on appeal have been approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7006 (2017). 9. The criteria to establish for special month compensation since March 11, 2011 have been met. 38 U.S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1968 to February 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 and June 2013 rating decision of the St. Petersburg, Florida and Decatur, Georgia Regional Office (RO), respectively. A TDIU due to service-connected disorders was in effect from May 16, 2007 to August 22, 2011. A 100 percent combined schedular evaluation was in effect during a segment of the preceding period, from August 3, 2009 to December 1, 2009, and from August 22, 2011 and continuing thereafter. Special monthly compensation under 38 U.S.C. § 1114(s) was in effect from September 11, 2009 to December 1, 2009. Special month compensation under 38 U.S.C. § 1114(k) on account of loss of use of a creative organ is in effect since August 22, 2011. Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). 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) (2017). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Hypertension In an August 2011 statement, the Veteran asserted that his hypertension resulted from his service-connected diabetes mellitus type II (DM). This is the only theory of service connection raised by the Veteran and the record suggests no other theories of entitlement. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Veteran is competent to report his symptoms; however, he is not competent, as a lay person, to provide a medical opinion pertaining to the cause or aggravation of his hypertension. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In May 2013, the Veteran was afforded a VA examination. The Veteran was diagnosed with hypertension. The examiner and the Veteran both noted the date of diagnosis as 1990. There is no competent evidence that supports the Veteran’s contentions of a causal or aggravational linkage between his hypertension and his diabetes. In a June 2013 addendum to the May 2013 VA examination, the examiner opined that the Veteran’s service-connected DM did not aggravate his hypertension because it pre-existed his DM and there was no evidence of aggravation. A preponderance of the evidence is against a finding that the Veteran’s hypertension was aggravated by his service-connected DM. The Veteran reported to the VA examiner that he was diagnosed with hypertension in 1990. In addition, the VA examiner opined that the Veteran’s hypertension pre-existed his DM and that the DM did not aggravate the Veteran’s hypertension. Furthermore, there is no competent medical opinion in the claims file indicating otherwise. Therefore, service connection is not warranted and the claim is denied. High cholesterol and lipid imbalance In an August 2011 statement, the Veteran asserted that his unhealthy cholesterol and lipid balance resulted from his service-connected DM. The Veteran has not argued, and the record does not suggest any other theory of entitlement. Robinson, supra. Without evidence of an associated disability, cholesterol abnormalities and lipid imbalance are laboratory findings and are not disabilities for which service connection may be granted. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for purposes of VA compensation benefits). Congress specifically limited entitlement to service-connected diseases or injuries in cases that have resulted in a disability. See Brammer v. Brown, 3 Vet. App. 223, 225 (1992). Without proof of a current disability, there can be no valid claim. 38 U.S.C. § 1110 (2012); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). A preponderance of the evidence is against a finding that the Veteran has a current disability concerning his unhealthy cholesterol and lipid balance. Therefore, service connection is not warranted and the claim is denied. Skin disorder In an August 2011 statement, the Veteran asserted that several skin disorders, including bacterial infections, fungal infections, diabetic dermopathy, necrobiosis lipoidica diabeticorum, disseminated granuloma annulare and acanthosis nigricans have resulted from his service-connected DM. There are no other theories of entitlement raised by the Veteran or the record. In the May 2013 VA examination, the examiner did not diagnose the Veteran with a skin disorder. The Veteran reported experiencing three herpes flare-ups on his chest in 1990, 1994 and 2012. The examiner indicated that the Veteran’s herpes was treated with medication and is currently asymptomatic. The examiner also noted that the Veteran has no other skin disorders. The Veteran has not submitted any other competent evidence of a current skin disability. Without proof of a current disability, there can be no valid claim. 38 U.S.C. § 1110 (2012); Degmetich, supra. A preponderance of the evidence is against a finding that the Veteran has a current skin disability. Therefore, service connection is not warranted and the claim is denied. Peripheral vascular disease In an October 2009 statement, the Veteran reported experiencing blood clots. In the May 2013 VA examination, the Veteran reported having been diagnosed with septic pulmonary emboli in 1983 which developed into deep vein thrombosis in 1990 and was subsequently placed on a blood thinner. The examiner diagnosed the Veteran with peripheral vascular disease. In the June 2013 addendum, the examiner indicated that the Veteran’s peripheral vascular disease pre-existed his service-connected DM because it began in 1983. The examiner opined that the Veteran’s service-connected DM did not aggravate his peripheral vascular disease because it pre-existed his DM and has progressed as expected. In his June 2013 notice of disagreement, the Veteran asserted that his peripheral vascular disease resulted from his service-connected DM. The Veteran is not competent, as a lay person, to provide an etiology opinion pertaining to his peripheral vascular disease. Jandreau, supra. A preponderance of the evidence is against a finding that the Veteran’s peripheral vascular disease was aggravated by his service-connected DM. The examiner opined that the Veteran’s peripheral vascular disease pre-existed his DM and that the DM did not aggravate the Veteran’s peripheral vascular disease. Furthermore, there is no competent medical opinion in the claims file indicating otherwise. Therefore, service connection is not warranted and the claim is denied. Obstructive sleep apnea In a March 2011 VA treatment record, the Veteran reported experiencing trouble sleeping and that he wakes up in a panic due to shortness of breath. The record also indicates that the Veteran has service-connected PTSD, which is rated as 50 percent disabling. Service treatment records (STRs) are silent for any complaints or reports pertaining to obstructive sleep apnea. In the Veteran’s February 1970 separation medical examination report, no sleeping abnormalities were noted. In his February 1970 separation medical history report, the Veteran answered in the negative to the question of whether he then, or once had frequent trouble sleeping. VA treatment records dated July 2011, January 2012, March 2012, July 2012, September 2012 and January 2013 indicate preliminary assessments and medications to relieve of sleep difficulties. However, these are not competent diagnoses of sleep apnea or OSA because a sleep study is required to diagnose such. See https://www.mayoclinic.org/diseases-conditions/sleep-apnea/diagnosis-treatment/drc-20377636 (last visited October 31, 2018). The above-noted VA treatment records do not mention or suggest that the Veteran underwent a sleep study that resulted in a diagnosis of sleep apnea or OSA. In his June 2013 notice of disagreement, the Veteran asserted that his OSA resulted from his service-connected DM. The Veteran is not competent, as a lay person, to provide an etiology opinion pertaining to his peripheral vascular disease. Jandreau, supra. Further, a medical opinion is not warranted based on the Veteran’s surmise that his disorder may be related to a service-connected disorder. See Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran’s conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). A preponderance of the evidence is against a finding that the Veteran has a competent diagnosis of OSA. There is no evidence in the claims file indicating that the Veteran underwent a sleep study with a subsequent diagnosis of OSA. Therefore, service connection is not warranted and the claim is denied. Bacterial lung infection In the June 2013 rating decision, the RO found that the Veteran’s bacterial lung infection was not caused by his active service and denied service connection. The Veteran did not raise, and the RO did not adjudicate whether the Veteran’s service-connected DM caused or aggravated his bacterial lung infection. In his June 2013 notice of disagreement, the Veteran asserted that his bacterial lung infection was related to his service-connected DM. This new theory of service connection was not adjudicated by the RO in the February 2016 statement of the case. However, the Veteran was notified of the evidence necessary to substantiate a claim of secondary service connection in an August 2011 VCAA letter. The Board will deny the claim because there is no evidence that the Veteran has a current bacterial lung infection. STRs are silent for complaints or reports concerning the Veteran’s lungs. In the Veteran’s February 1970 separation medical examination report, no lung abnormalities were noted. In his February 1970 separation medical history report, the Veteran did not report a medical history concerning his lungs. VA treatment records dated August 2006, April 2009 and November 2009 reflect the Veteran’s reports of experiencing a bacterial lung infection. However, in a November 2009 VA treatment record, a VA physician indicated that laboratory findings revealed no bacteriology. In a March 2011 VA treatment record, the Veteran reported experiencing a bacterial lung infection manifested by orthopnea, dyspnea and production of sputum. A VA medical doctor indicated that there were no findings to suggest a bacterial lung infection; however, it was noted that nasal allergy drainage was possibly the source of the Veteran’s sputum and claimed bacterial lung infection. In a March 2014 VA treatment record, the Veteran again reported experiencing a bacterial lung infection. A chest radiograph revealed that the Veteran had emphysema and no major obstructive airway disease or diffuse interstitial lung disease. The Veteran is competent to report experiencing symptoms; however, he is not competent, as a lay person, to diagnose or attribute his symptoms to a bacterial lung infection. Jandreau, supra. In addition, the Veteran’s medical records indicate that he does not currently have a bacterial lung infection. Without proof of a current disability, there can be no valid claim. Degmetich, supra. A preponderance of the evidence is against a finding that the Veteran has a current bacterial lung infection. Therefore, service connection is not warranted and the claim is denied. Chronic obstructive pulmonary disease STRs are silent for any complaints or reports pertaining to chronic obstructive pulmonary disease (COPD). In the Veteran’s February 1970 separation medical examination report, no lung abnormalities were noted. In his February 1970 separation medical history report, the Veteran did not report a medical history concerning his lungs. VA treatment records dated November 2003 to June 2016 indicate the Veteran’s diagnosis of COPD. In a February 2006 VA treatment record, a VA medical doctor indicated that the Veteran’s COPD was caused by his chronic bronchitis. In his June 2013 notice of disagreement, the Veteran asserted that his bacterial lung infection was related to his service-connected DM. The Veteran is not competent, as a lay person, to provide an etiology opinion pertaining to his COPD. Jandreau, supra. A preponderance of the evidence is against a finding that the Veteran’s COPD was caused by service or his service-connected DM. STRs are silent concerning the Veteran’s COPD. In addition, no lung abnormalities were noted or reported by the service medical examiner or the Veteran at service separation. In a February 2006 VA treatment record, a VA medical doctor indicated that the Veteran’s COPD was caused by his chronic bronchitis. Significantly, no competent medical examiner has opined that the Veteran’s COPD was caused by service or his service-connected DM. Therefore, service connection is not warranted and the claim is denied. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Coronary artery disease In the March 2012 rating decision, the RO granted service connection and assigned a 30 percent rating from May 16, 2006 to August 2, 2009; a 100 percent rating from August 3, 2009 to November 30, 2009; a 30 percent rating from December 1, 2009 to March 10, 2011 and a 60 percent rating from March 11, 2011 and continuing thereafter for the Veteran’s coronary artery disease (CAD) under DC 7006. In his April 2012 notice of disagreement, the Veteran expressed disagreement concerning only the 60 percent rating from March 11, 2011 and continuing thereafter. Under DC 7006, a 60 percent rating is assigned for myocardial infarction with more than 1 episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, DC 7006 (2017). A maximum 100 percent rating is assigned for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. In the March 2011 VA examination, the examiner indicated that the Veteran’s CAD resulted in fatigue and shortness of breath. An echocardiogram revealed normal left ventricle function, size and shape with an ejection fraction of 50 to 55%. The examiner indicated that the Veteran’s METs level was 3-5. In May 2013, the Veteran was afforded a VA examination. The Veteran underwent a myocardial infarction in 1983, 2004, 2009 and 2012. The examiner indicated that continuous medication was required to control the Veteran’s CAD and that he had chronic congestive heart failure. It was noted that the Veteran has not had any episodes of acute congestive heart failure in the past year. An interview-based METs test resulted in 1-3 METs and the Veteran reported experiencing dyspnea, fatigue and angina. The examiner indicated that the Veteran’s METs level limitation was due solely to his CAD. The Board will grant a 100 percent rating for the entirety of the rating period on appeal because the Veteran’s disability picture more nearly approximates the criteria for a 100 percent rating under DC 7006. The March 2011 VA examiner did not indicate whether the Veteran had chronic congestive heart failure; however, the record is clear that the Veteran underwent a myocardial infarction in 1983, 2004 and 2009. In addition, the May 2013 VA examiner indicated that the Veteran had chronic congestive heart failure due to the myocardial infarctions in 1983, 2004, 2009 and 2012 due solely to his CAD. Furthermore, the May 2013 VA interview-based METs test revealed 1-3 METs resulting in dyspnea, fatigue and angina. Therefore, an increased rating of 100 percent is warranted and the claim is granted. Special Monthly Compensation A grant of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) was in effect from September 11, 2009 to December 1, 2009. In addition, SMC under 38 U.S.C. § 1114(k) due to loss of use of a creative organ is in effect since August 22, 2011. SMC is payable under 38 U.S.C. § 1114(s) when a veteran has a single service-connected disability rated as 100 percent and has an additional service-connected disability independently ratable at 60 percent or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i) (2017). Given the grant above, the Veteran now has a 100 percent rating for coronary artery disease. The Veteran’s other service-connected disorders include PTSD rated 50 percent disabling; bilateral cataracts rated 40 percent disabling; residuals of a left knee injury rated 30 percent disabling; bilateral hearing loss rated 20 percent disabling; diabetes mellitus type II rated 20 percent disabling; bilateral tinnitus rated 10 percent disabling; left knee traumatic arthritis rated 10 percent disabling; right knee crepitus and instability rated 10 percent disabling; left upper extremity diabetic neuropathy rated 10 percent disabling; right upper extremity diabetic neuropathy rated 10 percent disabling; left lower extremity diabetic neuropathy rated 10 percent disabling and right lower extremity diabetic neuropathy rated 10 percent disabling. The Veteran’s other service-connected disorders involve different anatomical segments or bodily systems. Therefore, the Veteran is entitled to SMC under 38 U.S.C. § 1114(s) since March 11, 2011. REASON FOR REMAND A remand is necessary for the RO to issue a statement of the case addressing the Veteran’s October 2016 notice of disagreement pertaining to the ratings and effective dates assigned for the Veteran’s service-connected PTSD. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). After adjudication, the RO must consider the question of whether the Veteran is entitled to an earlier effective date for the grant of a total rating based on individual unemployability under the Court’s ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009)((holding that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating)). The matter is remanded for the following actions: 1. Issue an SOC to the Veteran as to the denial of an initial rating more than 30 percent from November 25, 1992 to September 7, 2016 and an increased rating more than 50 percent from September 8, 2016 and continuing thereafter. The Veteran’s notice of disagreement also indicates disagreement with the effective dates. 2. As part of any readjudication of the issue, consider whether the Veteran was unemployable due to service-connected disorders for any appellate period now not contemplated in the TDIU rating. 3. The Veteran should be given an appropriate opportunity to respond to the statement of the case. Then conduct all other appropriate appellate proceedings. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel