Citation Nr: 18159714 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-59 416 DATE: December 20, 2018 ORDER Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is denied. Entitlement to an effective date prior to November 15, 2011 for a 30 percent rating for two vessel coronary artery disease (CAD) is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for two vessel CAD is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s diabetes mellitus began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 2. The preponderance of the evidence is against finding that peripheral neuropathy of the bilateral upper extremities began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that peripheral neuropathy of the bilateral lower extremities began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 4. The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include depression, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. 5. The Veteran filed a claim for increased rating for service-connected two vessel CAD on January 23, 2013. 6. The Veteran was granted an increased rating of 30 percent for service-connected two vessel CAD effective November 15, 2011, in a November 2013 rating decision. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for peripheral neuropathy of the bilateral upper extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 3. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 4. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 5. The criteria for the assignment of an effective date prior to November 15, 2011 for establishing a 30 percent evaluation for two vessel CAD have not been met. 38 U.S.C. §§ 5110, 5103A; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1972 to April 1982. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including diabetes mellitus and psychoses, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the Board acknowledges that the Veteran has not been afforded a VA examination with respect to his claims for service connection but finds no such examination was required because the evidence does not indicate that the claimed disabilities, or symptoms thereof, may be associated with his active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Although the Veteran has current diagnoses of diabetes, peripheral neuropathy, and an acquired psychiatric disorder, there is no competent and credible evidence of an in-service event, injury or disease, or a nexus between any of his diagnosed disabilities and service. As such, the Board finds that a VA examination was not required. 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 3. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 4. Entitlement to service connection for an acquired psychiatric disorder, to include depression. The Veteran asserts that he is entitled to service connection for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and an acquired psychiatric disorder. However as outlined below, the preponderance of the evidence of record demonstrates that the Veteran’s diabetes mellitus, peripheral neuropathy, and acquired psychiatric disorder did not manifest during, within one year following, or as the result of active service. As such, service connection cannot be established on a direct basis. The Veteran’s service treatment records (STRs) are silent for complaints or treatment for diabetes, peripheral neuropathy, and an acquired psychiatric disorder. At most, in a February 1978 STR the Veteran stated that he experienced numbness in the left arm once a week for about three hours in relation to chest pain. On physical examination the medical provider found that the Veteran was not in distress. On the February 1982 separation examination, the medical provider indicated that the Veteran’s urinalysis for sugar, endocrine system, upper and lower extremities, and psychiatric findings were normal. An April 2005 VA treatment record indicated that the Veteran was diagnosed with diabetes mellitus, however the record does not indicate when the Veteran was diagnosed. Medical records in 1994 and 1996 show no complaints of or treatment for diabetes. On a September 2011 VA treatment record the medical provider observed that the Veteran was positive for radicular pain of the left leg. On a later September 2011 VA treatment record the Veteran reported left leg weakness and pain. The medical provider indicated that this was likely due to his herniated disc and aggravation by a recent motor vehicle accident. The medical provider stated that the Veteran has a history of a prior motor vehicle accident in 2010 where he started having lower back pain that is now chronic. The medical provider also noted that the Veteran had a left shoulder injury in that motor vehicle accident and was unable to lift his arm above 90 degrees after the accident, but he was never formally worked up for rotator cuff injury. Also in September 2011 the Veteran complained of right arm tingling and numbness at the right fourth and fifth fingers. In a March 2015 VA treatment record the Veteran was positive for neuropathy and eye issues, and the medical provider indicated that he needed close follow-up by the diabetes management team. In a December 2015 VA treatment record the medical provider indicated that the Veteran had experienced depression since 2001. The Veteran denied a history of depression in 2001. Based on the foregoing, there is no evidence that the Veteran’s diabetes mellitus, peripheral neuropathy, and acquired psychiatric disorder was manifested in service or to a compensable degree in the first year following his separation from service. Specifically, at separation from service, the Veteran’s endocrine system, upper and lower extremities, and psychiatric evaluation were normal, and he made no complaints related to the endocrine system, upper and lower extremities, or for a mental disorder. Further, in 2015, the Veteran denied experiencing any depression in 2001. Consequently, service connection for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and an acquired psychiatric disorder on the basis that such became manifest in service and persistent, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from diabetes mellitus, peripheral neuropathy of the upper and lower extremities, and a mental disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 288, 295-96 (1997). There is also no competent medical evidence of record that the Veteran’s claims are otherwise related to service. The Veteran’s post-service VA and private treatment records are silent for any opinion relating these disorders to service. Although the Board recognizes that the Veteran is competent to report symptoms, as discussed below, the evidence in this case clearly demonstrates that his diabetes mellitus, peripheral neuropathy, and acquired psychiatric disorder developed many years following separation from service. There is simply nothing in the record to support a finding that his diabetes mellitus, peripheral neuropathy or acquired psychiatric disorder began in or is otherwise in any way related to service. Further, the Veteran’s own statements relating his diabetes mellitus, peripheral neuropathy, and mental disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether diabetes mellitus, peripheral neuropathy, and a mental disorder, in the absence of credible evidence on continuity, as here, are related to service. See Jandreau v. Nicholson, 492 F. 3d (1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Court.). Also, diabetes mellitus, peripheral neuropathy, and a mental disorder are diseases of the endocrine, musculoskeletal, and psychiatric systems, respectively, and the record does not show that the Veteran has training or education in these medical fields; therefore, lay evidence of their etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, and an acquired psychiatric disorder. Accordingly, the claims must be denied. Earlier Effective Date Entitlement to an effective date prior to November 15, 2011 for a 30 percent rating for two vessel CAD. Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Thus, the plain language of section 5110(b)(2) only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim. Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). Here, the Veteran filed a claim for increase for his two vessel CAD that was received on January 23, 2013. A VA examination was provided April 2013 and showed an increase in the Veteran’s symptoms for two vessel CAD. A November 2013 rating decision granted the Veteran an increased rating of 30 percent, effective November 15, 2011. Based on review of the evidence on record, the Board finds that nothing in the record demonstrates that the Veteran’s service-connected two vessel CAD increased in severity in the year prior to January 23, 2013 (the date of claim) so as to warrant a higher schedular rating. The Board concludes that January 23, 2013, the date of receipt of the claim, is the correct effective date of the grant of a 30 percent disability rating for his service-connected two vessel CAD. See 38 C.F.R. § 3.400(o)(2). However, the Board will not disturb the effective date assigned for the 30 percent rating. Accordingly, an effective date prior November 15, 2011 is not warranted. REASONS FOR REMAND Entitlement to a disability rating in excess of 30 percent for two vessel CAD is remanded. February and March 2017 VA treatment records indicate that the Veteran may have experienced congestive heart failure in the past year, which suggests that his two vessel CAD may have worsened since his most recent VA examination in April 2013. As it has been over five years since the Veteran has been provided with a VA examination concerning his service-connected two vessel CAD and there is an indication of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran’s two vessel CAD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Caffrey v. Brown, 6 Vet. App. 377 (1994). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected two vessel CAD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to two vessel CAD alone and discuss the effect of the Veteran’s two vessel CAD on any occupational functioning and activities of daily living. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel