Citation Nr: 18159338 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-01 383 DATE: December 19, 2018 ORDER A disability rating greater than 20 percent for diabetes mellitus is denied. REMANDED The following issues are remanded for further development: (1) service connection for a cervical spine condition; (2) service connection for a left leg condition; (3) service connection for rhinitis and/or a deviated nasal septum; (4) service connection for a disability of the gums; (5) a disability rating greater than 10 percent for a right knee disability; (6) a disability rating greater than 20 percent for a thoracic spine disability; (7) a compensable disability rating for a right thumb disability; (8) an effective date prior to December 19, 2013 for the award of a 20 percent rating for a thoracic spine disability on the basis of clear and unmistakable error (CUE) in an August 2002 rating decision; and (9) an initial compensable rating for a right thumb disability on the basis of CUE in an August 2002 rating decision. FINDING OF FACT The Veteran’s service-connected diabetes mellitus did not require the regulation of activities at any point during the claim period. CONCLUSION OF LAW The criteria for a disability rating greater than 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7913; Camacho v. Nicholson, 21 Vet. App. 360 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to October 1990 and from March 2003 to February 2007. The Veteran has additional service in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Togus Regional Office (RO) in Augusta, Maine. Jurisdiction of the Veteran’s claims file currently resides with the Newark, New Jersey RO. An Increased Disability Rating for Diabetes Mellitus As indicated above in the Conclusions of Law section, the Board finds that the Veteran is not entitled to a disability rating greater than 20 percent for his service-connected diabetes mellitus. Accordingly, the Veteran’s claim is denied. Diabetes mellitus is evaluated under the criteria of 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this diagnostic code, a 20 percent rating is warranted when diabetes requires the use of insulin or oral hypoglycemic agents, and a restricted diet. In order to warrant a higher 40 percent disability rating, the evidence must show that the Veteran’s diabetes required insulin, a restricted diet, and regulation of activities. The criteria for even higher evaluations, including 60 percent, include the requirements for the 40 percent rating plus additional symptomatology. Importantly, the criterion of regulation of activities for control of diabetes is required for each rating above 20 percent. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities, and medical evidence is required to support that such avoidance is medically necessary. Camacho v. Nicholson, 21 Vet. App. 360, 361, 364 (2007). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process under Diagnostic Code 7913. 38 C.F.R. § 4.119, Diagnostic Code 7913, Note (1). Turning to the evidence of record, the Board notes that the Veteran was afforded a VA diabetes examination in April 2014. The examiner stated that the Veteran’s diabetes was managed by restricted diet and a prescribed oral hypoglycemic agent. Additionally, the examiner commented that (1) regulation of activities was not required as part of the medical management of the Veteran’s diabetes, and (2) the Veteran had no diabetic complications. A review of relevant VA treatment records associated with the claims file corroborates the findings of the April 2014 VA examiner regarding a lack of regulation of activities and no diabetic complications. Specifically, in addition to noting prescribed diabetic medication, a July 2013 VA treatment record noted that the Veteran was educated on modifying his diet. Further, in August 2014 and July 2016 VA treatment records, VA clinicians indicated that the Veteran actually needed to increase his physical activities—the exact opposite of “regulation” as defined by Camacho. Regarding the related issue of diabetic complications, VA optometry records from August 2013 and January 2016 contain notations that while the Veteran was diabetic, he did not have diabetic retinopathy. Additionally, as recorded in a July 2015 VA treatment record, a diabetic foot examination revealed all normal findings. The Board acknowledges that, in January 2017, the Veteran stated that his diabetes required physician-directed regulation of activities. However, the other evidence of record is not supportive of this contention. Although the Veteran may have adjusted his activities in response to his diabetes diagnosis, there is no evidence that any physician treating his diabetes has deemed it a medical necessity to limit the Veteran’s ability to partake in strenuous occupational and recreational activities. Accordingly, the Board may not assign a disability rating greater than 20 percent. REASONS FOR REMAND 1. Service Connection for a Cervical Spine Condition, a Left Leg Condition, Rhinitis and/or a Deviated Nasal Septum, and a Disability of the Gums Relevant to all of the service connection issues pending on appeal, the Board notes that while the Veteran’s claims file contains several Department of Defense Form 214s (DD 214) documenting periods of active duty service, the file does not contain documentation verifying the dates of all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) regarding the Veteran’s National Guard service. As service connection may be granted for a disease or injury incurred in or aggravated during a period of ACDUTRA or INACDUTRA, the Board finds that verification of the Veteran’s ACDUTRA and INACDUTRA periods with the National Guard is required prior to the adjudication of his service connection issues on their merits. Turning to the issues of service connection for a cervical spine and left leg condition, the Board finds that it cannot make a fully-informed decision on these issues because no VA examiner has opined whether they were caused by, incurred in, or related to service. As such, remand is warranted for the provision of VA examinations and medical opinions. Lastly, regarding the issues of service connection for rhinitis, a deviated nasal septum, and a disability of the gums, the Board finds that while the Veteran was provided VA examinations for these issues in March and April 2014, remand is warranted as the associated medical opinions of record are inadequate for adjudicative purposes. Specifically, regarding rhinitis and a deviated nasal septum, in the above-mentioned April 2014 VA diabetes examination report, the examiner remarked that allergic rhinitis was less likely than not secondary to service-connected diabetes. The examiner provided no rationale for this opinion and did not address aggravation. Regarding a disability of the gums, following an April 2014 VA dental and oral conditions examination, VA treatment records from May 2014 note a possible worsening of the Veteran’s disability, including noted moderate-to-severe periodontal bone loss and additional affected teeth since the time of the examination. Additionally, similar to the April 2014 VA diabetes examiner, the April 2014 VA dental examiner remarked that the Veteran’s dental condition could not be caused by diabetes. But, the examiner did not discuss aggravation. Accordingly, remand is warranted for the provision of new VA examinations and medical opinions. 2. Increased Disability Rating for the Right Knee The Veteran was most recently afforded a VA examination regarding his right knee disability in September 2014. Thereafter, in January 2017, the Veteran reported that he suffered from frequent incapacitating episodes due to right knee symptoms. VA’s statutory duty to assist includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a new VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the Board finds that remand for a new VA examination is warranted as the Veteran’s right knee disability may have increased in severity since the September 2014 VA examination. 3. CUE as to the Initial Ratings Assigned for the Thoracic Spine and the Right Thumb In January 2017, the Veteran contended that he should have been assigned an initial 20 percent rating for his thoracic spine condition as well as a compensable rating for his right thumb condition. Liberally construed, the Veteran’s January 2017 statement contains allegations of CUE as to an August 2002 rating decision. Although the Agency of Original Jurisdiction (AOJ) adjudicated the issues of entitlement to increased disability ratings for the thoracic spine and the right thumb, it has not adjudicated the related question of whether the August 2002 rating decision contained CUE. Therefore, that question must be remanded for adjudication by the AOJ in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc); Huston v. Principi, 18 Vet. App. 395, 402-03 (2004). 4. Increased Ratings for the Thoracic Spine and the Right Thumb Lastly, regarding increased rating issues for the thoracic spine and right thumb, a final decision on their merits may be impacted by the above-remanded issues of CUE. Where a pending claim is inextricably intertwined with a claim currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Contact the Veteran’s Army National Guard Unit, the Defense Finance and Accounting Service, or any other appropriate sources to verify the Veteran’s periods of ACDUTRA and INACDUTRA. Any negative responses should be in writing and should be associated with the claims file. 2. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since September 2016. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 3. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s cervical spine condition. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify any current cervical spine condition by diagnosis. (b.) For each condition identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any left leg condition. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify any condition impacting the left leg by diagnosis. (b.) For each condition identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 5. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran’s rhinitis and/or a deviated nasal septum. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s rhinitis was caused by, incurred in, or is otherwise related to service. (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s rhinitis is proximately due to his service-connected diabetes mellitus. (c.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s rhinitis was aggravated (worsened beyond natural progression) by his service-connected diabetes mellitus. (d.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s deviated nasal septum was caused by, incurred in, or is otherwise related to service. (e.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s deviated nasal septum is proximately due to his service-connected diabetes mellitus. (f.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s deviated nasal septum was aggravated (worsened beyond natural progression) by his service-connected diabetes mellitus. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 6. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any disease of the gums. The Veteran’s claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and the results reported in detail. The examiner should then address the following: (a.) Please identify any oral or dental condition by diagnosis. (b.) For each condition identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was caused by, incurred in, or is otherwise related to service. (c.) For each condition identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition is proximately due to the Veteran’s service-connected diabetes mellitus. (d.) For each condition identified in subsection (a), please state whether it is at least as likely as not (50 percent probability or more) that the condition was aggravated (worsened beyond natural progression) by the Veteran’s service-connected diabetes mellitus. The examiner should consider medical and lay evidence dated both prior to and since the filing of the claim. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 7. After Items (1) and (2) have been completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected right knee disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected right knee disability, and how he characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare-ups, identify the: i. frequency; ii. duration; iii. precipitating factors; and iv. alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up, range of motion is additionally limited to 30 degrees flexion and/or 15 degrees extension. Please explain why or why not. (d.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 8. Adjudicate the Veteran’s contention of clear and unmistakable error in an August 2002 rating decision as to why: (a.) He should have been assigned an initial 20 percent rating for the thoracic spine, and (b.) He should have been assigned an initial compensable rating for the right thumb. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel