Citation Nr: 18154421 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-40 886 DATE: November 29, 2018 ORDER Service connection for type II diabetes mellitus is denied. Service connection for diabetic neuropathy is denied. Service connection for gout (claimed as hyperuricemia) is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder (claimed as ankylosis) is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy (claimed as a right and left leg condition) is remanded. Entitlement to service connection for right carpal tunnel syndrome is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and depression, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Type II diabetes mellitus did not manifest to a degree of 10 percent or more within one year of service, and is not otherwise related to service, and there is no evidence of service in the Republic of Vietnam. 2. The claim for service connection for diabetic neuropathy is denied as a matter of law as the Veteran’s underlying diabetes is not a service-connected disability. 3. The Veteran’s gout and hypertension, diagnosed years after service, were not incurred during active duty and are not otherwise related to it. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type II diabetes mellitus are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for diabetic neuropathy are not met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for gout (claimed as hyperuricemia) are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for hypertension are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to March 1970, with subsequent service in the Army National Guard from March 1970 to April 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the November 2013 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Although the RO construed some of the Veteran’s claims as requiring the need for new and material evidence to reopen the claims, the Board finds that the Veteran filed timely notices of disagreement (NOD) with both the November 2013 and January 2016 rating decisions. See December 2013 statement in support of claim (construed by the Board as a NOD) and March 2016 NOD. As such, the Veteran is not required to reopen his claims and the Board can adjudicate the issues on the merits. The Board also noted that additional VA treatment records were received in April 2018, following the most recent December 2016 Statement of the Case. The Board finds that the additional VA treatment records are essentially duplicative of other evidence already of record and pertain to the presence of and treatment for diabetes, gout, and hypertension-elements of the claims already established at the time the new evidence was submitted. The Board therefore finds that remand of the claim for consideration of the new evidence by the AOJ is not required and the Board will consider the claims on the merits. See 38 C.F.R. § 20.1304 (2017). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). 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). Only chronic diseases, to include diabetes, hypertension, psychoses, and degenerative joint disease, are listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Diabetes Mellitus and Diabetic Neuropathy The Veteran essentially maintains that he has diabetes that is related to service. The medical evidence shows that the Veteran is currently diagnosed with type II diabetes mellitus. The Veteran has not provided any details as to why he believes his diabetes is related to service. Diabetes is a disease associated with herbicide exposure; however, the Veteran himself does not maintain, and the evidence does not show, that he served in the Republic of Vietnam. Because he did not serve in the Republic of Vietnam, service connection for diabetes mellitus cannot be granted on a presumptive basis based on exposure to herbicide agents. See 38 C.F.R. §§ 3.307, 3.309 (2017). The Veteran’s service treatment records are unavailable. See October 2013 Formal Finding of Unavailability of Federal Records. After requesting them in conjunction with the claim, the Agency of Original Jurisdiction (AOJ) was informed that there were no service treatment records. Additional efforts to obtain any such records would therefore be futile. When service records are unavailable, the Board has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). While recognizing that the service treatment records are unavailable, the record does not otherwise show any chronic symptoms of diabetes having begun in service, or of continuing symptoms since service separation. The first evidence of a diagnosis of diabetes is not shown until approximately 2006, many years following active duty service. See Social Security Administration disability records. The first indication of diabetes many years after service also establishes that there is no evidence of diabetes mellitus having manifested to a compensable degree within one year of service separation. Next, the Veteran’s diabetes has not been shown to be etiologically related to service. While the Veteran has not been afforded a VA examination regarding his diabetes, a remand for a medical opinion regarding the etiology of diabetes is not required. In this regard, there is no competent and credible lay or medical evidence of record of an event, injury, or disease that occurred in service or an indication that the current diabetes mellitus may be associated with service. The Board also considered the Veteran’s statements, however, as a lay person, he does not have the requisite medical knowledge, training, or experience to render a competent medical opinion regarding the cause of the medically complex disorder of diabetes. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Type II diabetes mellitus is a complex disease processes because of its multiple possible etiologies and is not capable of lay observation. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). For the reasons discussed above, the competent, credible, and probative evidence of record reflects that diabetes was not incurred in service, did not manifest to a compensable degree within one year of service separation, and is not etiologically related to service. A preponderance of the evidence is against the claim for service connection for diabetes and the appeal is denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. The Veteran also seeks service connection for diabetic neuropathy. In other words, he is claiming that he has neuropathy as secondary to his diabetes. As determined herein however, the Board finds that service connection is not warranted for diabetes mellitus. There is no legal basis upon which to award service connection for a disability that is claimed as secondary to a disability that is not service connected. Consequently, the Veteran’s claim for service connection for diabetic neuropathy must thus be denied as a matter of law because the Veteran is not service connected for the underlying diabetes. 38 C.F.R. § 3.310; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Gout (Claimed as Hyperuricemia) The Veteran filed a claim for service connection for hyperuricemia. A review of Social Security Administration disability records shows an indication of high level of uric acid (i. e., hyperuricemia). Further, VA treatment records show that the Veteran has been prescribed medication for gout. As such, the Board has recharacterized the claim on appeal as noted above. The Veteran has not indicated why he believes his gout is related to service. Thus, despite the presence of a current diagnosis, the Board finds that there is no evidence of an in-service incurrence of a disease or injury related to gout. VA and private medical records do not address the etiology of the Veteran’s gout and/or hyperuricemia. The Veteran has not submitted a competent opinion relating his gout to his military service. Moreover, the Veteran himself is not competent to offer an etiology opinion as the determination as to the etiology of his gout involves complex medical questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for gout, to include hyperuricemia. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. Hypertension The Veteran generally asserts that service connection for hypertension is warranted. The medical evidence shows a current diagnosis of hypertension; however, the Veteran has not provided any lay or medical evidence in support of his claim. As previously noted, the Veteran’s service treatment records and separation documentation are unavailable for review. The evidence of record does not otherwise show that the Veteran had chronic symptoms of hypertension in service or continuing symptoms thereafter. There is also no evidence in the claims file that the Veteran’s hypertension manifested to a compensable degree within one year of service separation. A diagnosis of hypertension is not objectively shown in the record until the early 2000s. See SSA disability records. The absence of post-service complaints, findings, diagnosis, or treatment for several years after service is a factor that weighs against the claim. The Board also considered the Veteran’s lay statements purporting to relate his hypertension to service. However, as a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex hypertension disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Hypertension is a medically complex disease process because of its multiple possible etiologies and is not capable of lay diagnosis. Finally, there is no competent opinion of record relating the Veteran’s hypertension to service. For these reasons, the Board concludes that the weight of the evidence is against the claim for service connection for hypertension, and the claim must be denied. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Right Shoulder, Cervical Spine, Lumbar Spine, Radiculopathy, and Right Carpal Tunnel Syndrome The Veteran maintains that he has disabilities of the cervical spine, lumbar spine, right shoulder, and right wrist that are related to his military service, to include his in-service duties as a truck driver while serving in the Army National Guard. His DD-214 also reflects that his military occupational specialty (MOS) was a light weapons infantryman during active duty service. As noted above, the Veteran’s service treatment records (both during active service and while in the National Guard) are unavailable for review. However, it does not appear that efforts have been made determine the Veteran’s periods of active duty for training and inactive duty training in the Army National Guard. These determinations could potentially be determinative as to whether the Veteran’s claimed physical disorders were incurred in service. As such, a remand is required. Further, there is evidence of current disability. The evidence includes an undated medical examination (entry date 9/10/12) and a June 2016 medical examination both from Dr. Q. During the evaluation, the Veteran reported neck and lumbar pain and was diagnosed with chronic cervical spine pain, degenerative disc disease of the lumbar spine, right rotator cuff tear, and right carpal tunnel syndrome. However, Dr. Q. did not provide an opinion as to the etiology of the claimed disorders. The Veteran was afforded VA examinations of the spine, shoulder, and wrist in August 2016. Similarly, however, an opinion as to the etiology of these disorders was not provided. Given the evidence of current disabilities, the heightened duty to assist the Veteran due to the unavailability of his service treatment records, and his lay reports that his spine, right shoulder, and right wrist disorders began in service as a result of his MOS duties, the Board finds that VA examinations are appropriate to assist in determining the likely etiology of his disorders. The Veteran has specifically requested VA examinations, and although he has been afforded compensation examinations, etiology opinions were not requested. With regard to the bilateral leg claim, in a September 2014 statement, the Veteran indicated that he has back pain that was “radiating ot both legs.” The Veteran’s claimed bilateral leg disorder diagnosed as radiculopathy is remanded as it is potentially related to the claim for entitlement to service connection for a lumbar spine disability. Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder. Although VA treatment records are negative for any psychiatric diagnoses or screenings, the Veteran submitted a June 2016 private medical evaluation from Dr. Q. who indicated diagnoses of generalized anxiety disorder and depression. Although Dr. Q is not shown to possess specific medical training in psychiatry, the Board recognizes that Dr. Q is an internal medicine doctor and likely possesses some training, albeit limited, in psychiatry/psychology. The Veteran maintains that his psychiatric disorder may be related to his physical limitations. See October 2013 statement. As such, a remand is warranted as this issue is potentially intertwined with the physical disabilities remanded herein. TDIU The issue of entitlement to a TDIU is intertwined with the claims being remanded and referred. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Verify the Veteran’s periods (i.e., dates) of active duty for training and inactive duty training in the Army National Guard. 2. Obtain any outstanding VA treatment records and associate them with the claims file. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of the cervical and lumbar spine disorders and claimed radiculopathy of the lower extremities. The claims file must be made available to and reviewed by the examiner. All indicated diagnostic testing, including x-rays, should be done. After reviewing the claims file and examining the Veteran, the examiner should provide the following: (a.) List all current diagnoses related to the Veteran’s cervical spine, lumbar spine, and confirm a diagnosis of radiculopathy of the lower extremities. (b.) For each current diagnosis concerning the cervical spine, lumbar spine, and radiculopathy, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) was incurred in or is otherwise related to service, to include the Veteran’s MOS duties to include heavy equipment driving. (c.) A complete rationale for all opinions must be provided 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right shoulder disorder. The claims file must be made available to and reviewed by the examiner. All indicated diagnostic testing, including x-rays, should be done. After reviewing the claims file and examining the Veteran, the examiner should provide the following: (a.) Was the current right shoulder disorder at least as likely as not (i.e., 50 percent or greater probability) incurred in or otherwise related to service, to include the Veteran’s MOS duties, to include heavy equipment driving. **In doing so, address the Veteran’s post-service 2005 right shoulder injury and 2006 MRI evidence of a fairly severe tear. (b) A complete rationale for all opinions must be provided. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s right wrist disorder. The claims file must be made available to and reviewed by the examiner. All indicated diagnostic testing, including x-rays, should be done. After reviewing the claims file and examining the Veteran, the examiner should provide the following: (a.) List all current diagnoses related to the Veteran’s right wrist disorder, to include carpal tunnel syndrome. (b.) For each currently diagnosed right wrist disorder, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) was incurred in or is otherwise related to service, to include the Veteran’s MOS duties to include heavy equipment driving. (c.) A complete rationale for all opinions must be provided. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed psychiatric disorder. The claims file must be made available to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should provide the following: (a.) List all current psychiatric diagnoses related to the Veteran. (b.) For each currently diagnosed psychiatric disorder, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) was incurred in or is otherwise related to service. (c.) For each currently diagnosed psychiatric disorder, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) was caused or aggravated by a service-connected disability. (d.) A complete rationale for all opinions must be provided. 7. Then, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel