Citation Nr: 18158626 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-62 223 DATE: December 17, 2018 ORDER Entitlement to service connection for vertigo is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling is remanded. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling is remanded. Entitlement to an increased rating for a low back disability, currently rated as 20 percent disabling is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, including as secondary to the service-connected knees and low back is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, including as due to service-connected knee and low back disabilities is remanded. Entitlement to service connection for migraines is remanded. FINDINGS OF FACT 1. The Veteran’s claimed vertigo is not attributable to her active duty service; vertigo is not due to or aggravated by a service-connected disability. 2. The Veteran’s claimed diabetes mellitus was not manifest in service or within one year of discharge, and is unrelated to service; diabetes mellitus is not due to or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Vertigo was not incurred in service and is not secondary to a service-connected disease or injury. 38 U.S.C. §§ 1101, 1131, 1133 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2018). 2. Diabetes mellitus was not incurred in service, may not be presumed to have been so incurred, and is not secondary to a service-connected disease or injury. 38 U.S.C. §§ 1101, 1131, 1133 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Historically, the Veteran submitted a claim of entitlement to service connection for vertigo and diabetes mellitus secondary to the service-connected right knee in April 2015. The claims were denied in a June 2015 decision. The Veteran disagreed with the denial of her claims and this appeal ensued. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2018). Certain chronic diseases, including diabetes mellitus, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1133 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition, as identified in 38 C.F.R. § 3.309(a), in service, or during an applicable presumptive period, and still has that disability. That evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2018). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be granted where a disability is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310 (2018). Compensation is payable when a service-connected disability has aggravated a nonservice-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Vertigo and Diabetes Mellitus A review of the Veteran’s service treatment reports does not reflect any complaints, findings, or treatment for vertigo or diabetes mellitus during service. The Veteran denied that she had diabetes on several occasions during service including in September 1985, January 1986, and February 1986. The October 1987 separation examination reveals that a sugar test was negative. The Veteran denied that she had diabetes at that time. Post-service VA outpatient treatment reports reflect that the Veteran denied diabetes in February 2000. She was reported to have missed an appointment for a diabetic nutrition counseling in September 2001. In March 2010, the Veteran was seen for a diabetic eye appointment and was reported to have had diabetes for five years. In October 2013, the Veteran’s diabetes was reported to be uncontrolled. In December 2012 and August 2013, the Veteran reported vertigo. Vertigo was listed as part of her past medical history in July 2014. As an initial matter, the Board notes that, with regard to service connection a direct basis, the evidence does not reflect, nor has the Veteran contended, that the Veteran’s vertigo and diabetes mellitus were incurred in or caused by her military service. The Veteran has not argued to the contrary. Additionally, diabetes mellitus was not diagnosed within one year of the Veteran’s separation from service. Consequently, service connection is not warranted on a direct basis with regard to either vertigo or diabetes mellitus or on a presumptive basis with regard to diabetes mellitus. The Board will now turn to the discussion of secondary service connection. Of note, the Veteran contends that her claimed vertigo and diabetes mellitus were caused or aggravated by the service-connected right knee disability. The Veteran has not submitted any competent medical evidence to link either disability to the service-connected right or left knee disability. The medical evidence associated with the claims file does not include any opinion linking either vertigo or diabetes mellitus to the service-connected right or left knee disability. Hence, the Board finds that the preponderance of the evidence is against a finding that it is at least as likely as not (50 percent or greater) that the Veteran’s service-connected right or left knee disabilities caused or aggravated her vertigo or diabetes mellitus. The Board acknowledges that the Veteran contends that her vertigo and diabetes mellitus are related to the service-connected right knee disability. As a lay person, the Veteran is considered competent to report what comes to her through her senses, but she lacks the medical training and expertise to provide a complex medical opinion such as determining the etiology of vertigo and diabetes mellitus. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the lay statements regarding the Veteran’s vertigo and diabetes mellitus as being related to the service-connected disabilities are not considered to be competent nexus evidence, as the Veteran is not shown to be medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to etiology. With regard to the claims for entitlement to service connection for vertigo and diabetes mellitus, while VA medical opinions were not provided, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary’s obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability. See McLendon v. Nicholson, 20 Vet. App.79 (2006). In this case, the Veteran has not specifically indicated that either claimed disability has persisted since service. Moreover, there is no medical evidence of record linking either disability to service or to a service-connected disability. As such, VA’s duty to provide an examination with an opinion is not triggered. See Waters, 601 F.3d 1274. Therefore, the criteria for service connection have not been met, and the Veteran’s claims are denied. As the preponderance of the evidence is against these claims, the benefit-of-the-doubt rule does not apply, and the claims for service connection for vertigo and diabetes mellitus must be denied. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claims can be reached. Left and Right Knee Disability The Veteran contends that she warrants ratings in excess of 10 percent for the service-connected left and right knee disabilities. The Veteran was last afforded a VA examination in June 2015, more than three years ago. At that time, she endorsed constant pain and denied flare-ups. She reported aggravation of pain with climbing stairs, getting up from a seated position, and with rainy weather. However, the examiner indicated that since the examination was not conducted during a flare up, it would only be speculative to report additional range of motion loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. As such, it is unclear as to whether there is a history of flare-ups as the examiner seems to indicate that the Veteran experienced flare-ups. The Veteran’s representative submitted argument in December 2016 and indicated that the examiner failed to address any functional loss during flare-ups and as such, the examination lacks sufficient detail necessary to rate the knees. The Court of Appeals for Veterans Claims (Court) has stated the examiner should attempt to ascertain adequate information from relevant sources, including lay statements, regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication the examiner made any attempt to ascertain adequate information from relevant sources in order to provide an opinion as to functional loss during flare-ups or with repeated use over time. In order to properly assess the claims for increased ratings for the left and right knee, the Veteran should be afforded a current examination to assess the nature and severity of the right and left knee disabilities. Low Back Disability and Peripheral Neuropathy of the Bilateral Lower Extremities With regard to the low back disability, the Veteran was afforded a VA examination in June 2015, more than three years ago. At that time, she endorsed flare-ups four of seven days per week with reports of increased pain. She was not having a flare-up at the time of the examination. The examiner indicated that since the examination was not conducted during a flare up, it would only be speculative to report additional range of motion loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. The Veteran’s representative submitted argument in December 2016 and indicated that the examiner failed to address any functional loss during flare-ups and as such, the examination lacks sufficient detail necessary to rate the low back. As noted, the Court has stated the examiner should attempt to ascertain adequate information from relevant sources, including lay statements, regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no indication the examiner made any attempt to ascertain adequate information from relevant sources in order to provide an opinion as to functional loss during flare-ups or with repeated use over time. In order to properly assess the claim for an increased rating for the lumbar spine, the Veteran should be afforded a current examination to assess the nature and severity of the lumbar spine disability. With regard to peripheral neuropathy of the bilateral lower extremities, the Veteran was afforded a VA examination for the claimed disabilities in June 2015. At that time, the examiner opined that the Veteran’s peripheral neuropathy of the lower extremities were sensory and likely due to poorly controlled diabetes mellitus. The examiner indicated that there was no connection between the service-connected knee issues and the complaints of shooting pain in the lower extremities. The examiner noted that a magnetic resonance imaging (MRI) of the lumbar spine revealed mild degenerative disc disease with no significant or relevant root compression at any level. The Veteran’s representative argued in December 2016 that the examiner did not adequately address whether peripheral neuropathy of the lower extremities was related to the service-connected low back disability. In light of the fact that the Veteran will be afforded another examination for the service-connected low back disability, the Board will remand the claim for peripheral neuropathy of the bilateral lower extremities so that the examiner can address whether peripheral neuropathy of the bilateral lower extremities is secondary to the low back disability. Migraines A review of the Veteran’s service treatment reports reflects that the Veteran sustained a head injury with loss of consciousness in June 1987. She was diagnosed with post-concussive syndrome in September 1987. She endorsed headaches once per week treated with Tylenol at that time. The Veteran was noted to have sustained at head injury with loss of consciousness at her separation examination in October 1987. The Veteran was afforded a VA examination for her claimed migraines in June 2015. The examiner opined that the Veteran’s headaches were less likely than not caused by or as a result of her service-connected knee disabilities. The examiner indicated that headaches are a common neurological complaint. The examiner reported that the Veteran was not treated chronically for headaches in service and headaches were not noted at the Veteran’s separation from service. However, the examiner failed to address the Veteran’s head injury and diagnosed post-concussive syndrome sustained in service. In light of the head injury with loss of consciousness sustained in service, an etiological opinion should be obtained to address whether the claimed migraines are etiologically related to service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with an appropriate examiner to determine the current severity of her service-connected left and right knee disabilities. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner should conduct range of motion testing of the bilateral knees (expressed in degrees) in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins (expressed in degrees). In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must also state whether there is any functional loss due to pain, weakened movement, excess fatigability, or incoordination causing additional disability after repetitions of the range of motion tests. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disabilities, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected disabilities, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disabilities. An opinion must be stated as to whether any associated pain could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Schedule the Veteran for an examination of the current severity of his low back disability. The Veteran’s claims file must be made available to and reviewed by the examiner. The examiner must fully describe all manifestations of this disability. All necessary tests must be conducted, including any relevant range of motion testing, and all clinical findings must be reported in detail. Range of motion testing results should be expressed in degrees with use of a goniometer, and standard ranges should be provided for comparison purposes. For each affected joint, the examiner must address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and [as applicable] with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner should specifically address whether the Veteran has radiculopathy of the left or right lower extremity which is caused or aggravated by the service-connected low back disability. The examiner must also state whether there is any functional loss due to pain, weakened movement, excess fatigability, or incoordination causing additional disability after repetitions of the range of motion tests. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability, the presence or absence of changes in condition of the skin indicative of disuse due to the service-connected disability, and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disability. Finally, an opinion must be stated as to whether any associated pain could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s lay statements. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Submit the Veteran’s claims file to the examiner who conducted the June 2015 headache examination or to an examiner with similar expertise. The claims file must be made available to, and reviewed by, the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s claimed migraines had a clinical onset during active service or are otherwise related to active service. In providing this opinion, the examiner should acknowledge the Veteran’s head injury and diagnosed post-concussive syndrome during service. If the examiner determines that another examination is necessary, the Veteran should be scheduled for an examination. 4. Then, readjudicate the Veteran’s claims. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should be returned to the Board for further appellate consideration, as appropriate. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel