Citation Nr: 18151592 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-32 892 DATE: November 19, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. REMANDED The issue of entitlement to service connection for stroke, to include as secondary to hypertension, is remanded. The issue of entitlement to service connection for right side paralysis, to include as secondary to hypertension, is remanded. The issue of entitlement to service connection for hypertension, to include as secondary to service-connected lumbar strain, is remanded. The issue of entitlement to higher staged initial ratings for lumbar strain, currently evaluated as 10 percent prior to July 8, 2013, and 20 percent from July 8, 2013, is remanded. The issue of entitlement to a higher initial rating for sciatica/radiculopathy of the left lower extremity, currently evaluated as 10 percent disabling, is remanded. The issue of entitlement to a higher initial rating for radiculopathy of the right lower extremity, currently evaluated as 10 percent disabling, is remanded. The issue of entitlement to an effective date earlier than November 9, 1976, for the grant of service connection for lumbar strain is remanded. The issue of entitlement to an effective date earlier than September 26, 2003, for the grant of service connection for sciatica/radiculopathy of the left lower extremity is remanded. The issue of entitlement to an effective date earlier than July 8, 2013, for the grant of service connection for radiculopathy of the right lower extremity is remanded. The issue of entitlement to service connection for the cause of the Veteran’s death is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran’s diabetes mellitus, type II, was etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. § 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1957 to October 1960. The Veteran died in February 2017. The appellant is the Veteran’s surviving spouse, and has met the basic eligibility for substitution as the appellant. See August 5, 2017 VA correspondence. These matters come before the Board of Veterans’ Appeals (Board) on appeal of March 2014, April 2016, and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that, in the March 2014 rating decision on appeal, the RO characterized the issue of entitlement to service connection for hypertension as a petition to reopen a previously denied claim for service connection for hypertension. Evidence received since the last prior denial of the claim, an April 1999 rating decision by the RO, includes the Veteran’s service treatment records. These records were not of record at the time of the April 1999 rating decision. The provisions of 38 C.F.R. § 3.156 (c) (1) (2017) provide that if, after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Id. Therefore, the Board considers the Veteran’s claim for entitlement to service connection for hypertension as an original claim rather than as a petition to reopen a previously denied claim. 38 C.F.R. § 3.156 (c) (1). In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the appellant, by which the appellant can obtain the benefit sought. Accordingly, the appellant’s appeals as to entitlement to service connection for hypertension, entitlement to service connection for stroke, and entitlement to service connection for paralysis have been expanded to include entitlement to service connection under the theory of secondary service connection, and have been characterized as stated above. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). In February 2018 and May 2018, the appellant submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304 (c) (2017). Therefore, the Board may properly consider such newly received evidence. In April 2016, the RO issued a rating decision that granted service connection for lumbar strain and bilateral lower extremity radiculopathy. Thereafter, the Veteran filed a notice of disagreement in February 2017 relating to the effective dates of the award and the evaluation of the disabilities; however, as will be discussed further below, a statement of the case has not been provided as to those issues. See Manlincon v. West, 12 Vet. App. 238 (1999). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the appellant. The Court further held that when evidence of unemployability is submitted at the same time as an appeal for the 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. at 452-54. In this case, the appellant’s representative has asserted that the Veteran’s service-connected lumbar strain prevented him from working since November 1976. The Board interprets this statement as an indication that the appellant feels that the Veteran was unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. 1. Entitlement to Service Connection for Diabetes Mellitus, Type II The appellant contends that the Veteran had diabetes mellitus, type II, that was directly related to his active service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131 (West 2002). To establish service connection for a disability on a direct-incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran had a diagnosis of diabetes mellitus, type II. See July 2016 VA treatment record. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, a review of the Veteran’s service treatment records does not reflect any symptoms, complaints or treatment for diabetes. The Veteran’s September 1960 separation examination reflects that his endocrine system was normal. Additionally, the Veteran stated he was in good health. The earliest indication in the record that the Veteran suffered from diabetes mellitus is a March 2006 VA treatment record reflecting diabetes. In summary, the service treatment records do not reflect in-service complaints of diabetes. The earliest evidence of record of diabetes is a March 2006 VA treatment record, noting diabetes mellitus. The VA treatment record is more than 45 years after the Veteran separated from active service. Therefore, there is evidence of a current diagnosis of diabetes mellitus, type II, but there is no evidence of an in-service injury, event or disease to which the Veteran’s diabetes mellitus, type II, may be medically attributed. Rather, the evidence suggests that the Veteran did not have diabetes mellitus, type II, until more than four decades after his active military service. The only evidence indicating an association between the Veteran’s diabetes and his active service are the Veteran’s and the appellant’s assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the diagnosis or etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). In certain instances, lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). However, the origin or cause of diabetes mellitus, type II, is not a simple question that can be determined based on personal observation by a lay person. It is not shown that the appellant is qualified through specialized education, training, or experience to be deemed competent to offer a medical opinion as to the etiology of diabetes mellitus, type II. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Hence, the appellant’s lay statements are not competent to establish medical etiology or nexus. Id. As such, the Board finds the question of whether the Veteran’s diabetes mellitus, type II, is etiologically related to his active service does not lie within the range of common experience or common knowledge but requires special experience or special knowledge. The Board acknowledges that the Veteran and the appellant were not afforded a VA examination relating directly to his diabetes. On these facts, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A (d) (2); 38 C.F.R. § (c) (4) (i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no diabetes in service, and that the symptoms of diabetes were not present for many years thereafter, no examination is required. Absent evidence that indicates that the Veteran had a current claimed disability that was related to an injury or symptoms in service, the Board finds that an additional VA examination or opinion is not necessary for disposition of the claim. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion with respect to the appellant’s claim for entitlement to service connection for diabetes mellitus, type II, has been met. 38 C.F.R. § 3.159 (c) (4). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for diabetes mellitus, type II. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA’s Duty to Notify and Assist With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). REASONS FOR REMAND The Board finds that further development is necessary before a decision on the merits may be made relating to the remaining issues on appeal. 1. Entitlement to Higher Initial Ratings and Earlier Effective Dates for Service-Connected Lumbar Strain and Right and Left Lower Extremity Radiculopathy An April 2016 rating decision granted service connection for lumbar strain with an evaluation of 10 percent disabling effective November 9, 1976 through July 7, 2013, and 20 percent disabling from July 8, 2013; entitlement to service connection for left lower extremity sciatica/radiculopathy with an evaluation of 10 percent disabling effective September 26, 2003; and, entitlement to service connection for right lower extremity radiculopathy with an evaluation of 10 percent disabling effective July 8, 2013. A timely notice of disagreement was received by VA in February 2017 concerning the effective date of the awards and the evaluation of the disabilities. A statement of the case (SOC) has not been issued. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board is required to remand the issues for issuance of a SOC. Id. 2. Entitlement to Service Connection for Hypertension, Stroke, and Paralysis The appellant contends that the Veteran was entitled to service connection for hypertension because his hypertension was secondary to his service-connected lumbar strain. Additionally, the appellant contends that the Veteran was entitled to service connection for stroke and paralysis because the conditions were secondary to his hypertension. See Correspondence, received May 2018. As such, these claims are inextricably intertwined with the appellant’s claims for entitlement to an increased initial rating for service-connected lumbar strain and entitlement to an earlier effective date for service-connected lumbar strain. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). 3. Entitlement to a TDIU The appellant contends that the Veteran was entitled to a TDIU effective November 9, 1976, due to his service-connected lumbar strain. As such, the appellant’s claim for entitlement to a TDIU is inextricably intertwined with the appellant’s claims for entitlement to higher initial ratings for service-connected lumbar strain and entitlement to an earlier effective date for service-connected lumbar strain. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, as noted above, the issue of entitlement to a TDIU has been raised as part and parcel to the appellant’s claim for higher initial disability ratings. See Rice, 22 Vet. App. 447. As the RO has not yet considered whether the Veteran was entitled to a TDIU, the issue must be remanded to the RO for appropriate development and initial adjudication. 4. Entitlement to Service Connection for the Cause of the Veteran’s Death The appellant contends that she is entitled to service connection for the cause of the Veteran’s death, in part, because the Veteran was entitled to a TDIU for more than ten years prior to his death, under 38 U.S.C. § 1318. As such, the claim for service connection for the cause of the Veteran’s death is inextricably intertwined with the appellant’s claims for entitlement to higher initial ratings for service-connected lumbar strain, entitlement to an earlier effective date for service-connected lumbar strain, and entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) The matters are REMANDED for the following action: 1. Provide the appellant and her representative with a statement of the case pursuant to the February 2017 notice of disagreement with the April 2016 rating decision, with consideration of any additional evidence, concerning the issues of entitlement to higher initial ratings for service-connected lumbar strain, service-connected left lower extremity sciatica/radiculopathy, and service-connected right lower extremity radiculopathy, and entitlement to earlier effective dates for the award of service connection for these disabilities. The appropriate period should be allowed for response. The appellant should be informed that she must file a timely substantive appeal to perfect an appeal to the Board of the April 2016 rating decision as to these issues. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (b) (2017). 2. Send the appellant a notification letter with respect to her claim for entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and a VA Form 21-4142, Authorization and Consent to Release Information to VA, for completion and return to VA. 3. Complete any necessary development in view of the appellant’s response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether the benefits sought on appeal may be granted. If any benefit sought on appeal remains denied, furnish the appellant   and her representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel