Citation Nr: 1806375 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-14 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for diabetic retinopathy, including as secondary to diabetes mellitus, type II. 2. Entitlement to an initial compensable rating for carotid artery disease. 3. Entitlement to an initial compensable rating for coronary artery disease. 4. Whether the severance of service connection for coronary artery disease was proper. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from March 1965 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. That decision denied, among other things, service connection for diabetic retinopathy. While the service-connection claim for diabetic retinopathy has a clear procedural history culminating in this Board's jurisdiction, another claim addressed in the February 2010 RO decision is not as clear and will be addressed in detail below. Despite the Veteran's 2009 service-connection claim for carotid artery disease, the February 2010 RO decision granted service connection for "coronary artery disease" and assigned a noncompensable rating effective November 19, 2008. Continuing thereafter, there was apparent confusion between the terms "coronary artery disease" and "carotid artery disease." In March 2010, the Veteran timely filed a notice of disagreement with respect to the assigned rating, arguing that the February 2010 rating decision erred in assigning a noncompensable rating because he was taking medication for "coronary artery disease." Attached as support for his notice of disagreement, however, was a physician's statement that the Veteran was receiving "on-going treatment for carotid artery disease" (emphasis added). In response to the notice of disagreement, the RO issued a statement of the case (SOC) in June 2012 that did not address an increased rating, but instead proposed severance of service connection for coronary artery disease. Days later, the Veteran filed a substantive appeal contesting the proposed severance. That same month, a June 2012 rating decision again proposed a severance of service connection for coronary artery disease, based on a finding of clear and unmistakable error (CUE), noting that the Veteran had never been diagnosed with coronary artery disease, but instead had been diagnosed with carotid artery disease. Given that the evidence clearly showed that the original condition at issue was "carotid artery disease" rather than "coronary artery disease," the June 2012 rating decision granted service connection for "carotid artery disease" with a noncompensable rating effective November 19, 2008. In response, in September 2012, the Veteran's accredited representative filed a statement contesting the assignment of a noncompensable rating for "coronary artery disease." Unfortunately, for reasons that are not abundantly clear, no action was taken on the proposed severance of service connection for coronary artery disease until a March 2017 rating decision again proposed a severance based on a finding of CUE. Ultimately, a September 2017 rating decision severed service connection for coronary artery disease (effective December 1, 2017). In November 2017, the Veteran's representative submitted an appellate brief indicating the severance of service connection for coronary artery disease was being appealed. Given the above filings, several matters do not have the procedural posture to ensure due process for the Veteran and secure this Board's jurisdiction. First, with regard to a compensable initial rating for "coronary artery disease," although the Veteran filed a timely notice of disagreement in March 2010 following the February 2010 rating decision, the RO did not issue an SOC that addressed that matter. Second, following the June 2012 decision granting a noncompensable rating for "carotid artery disease," the Veteran's representative filed a September 2012 document contesting the noncompensable rating for "coronary artery disease"; given that the Veteran had filed a notice of disagreement with regard to "coronary artery disease" two years prior, and given the demonstrated confusion between the terms "coronary artery disease" and "carotid artery disease," the Board will sympathetically and liberally construe the September 2012 letter as a notice of disagreement contesting the noncompensable rating for "carotid artery disease." Again, the RO did not issue an SOC as to that matter. Finally, with regard to severance of service connection for "coronary artery disease," that severance was made in a September 2017 rating decision. The Board will sympathetically construe the Veteran's November 2017 appellate brief as a notice of disagreement as to the severance. The RO did not issue an SOC following September 2017 rating decision. Thus, the RO has not provided the Veteran with an SOC for his claims for a compensable initial disability rating for coronary artery disease, a compensable initial disability rating for carotid artery disease, nor for the propriety of severance of service connection for coronary artery disease. Under these circumstances, the Board must remand these matters back to the RO to issue an SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of a compensable initial disability rating for coronary artery disease, a compensable initial disability rating for carotid artery disease, and the propriety of severance of service connection for coronary artery disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not have a current diagnosis of diabetic retinopathy. CONCLUSION OF LAW The service-connection criteria for diabetic retinopathy have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, 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. Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. For purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Turning to the evidence, the preponderance of the evidence does not show the Veteran has a current diagnosis of diabetic retinopathy since December 2009, the date the claim was filed. Upon examination at the VA Medical Center (VAMC) in November 2010 and during VA C&P optometry examinations in October 2011and January 2018, the Veteran was found to have diabetes mellitus, type II, without diabetic retinopathy. In March 2010, the Veteran submitted a statement that his eyes were good until he was diagnosed with type II diabetes. The Board has no reason to question the Veteran's assertion in this regard; however, the Veteran does not state that his eyes have gotten worse specifically due to diabetic retinopathy. Rather, the Board notes that the Veteran has been granted service connection for an eye condition (i.e. bilateral cataracts) specifically considered to be secondary to diabetes mellitus, type II. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. The preponderance of the evidence shows that the Veteran has not had diabetic retinopathy during the pendency of the appeal. Therefore, the Board concludes that the criteria for service connection have not been met. Accordingly, without a current disability, the Veteran's service-connection claim for diabetic retinopathy must be denied. See 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board is grateful for the Veteran's honorable service, and this decision in no way detracts from the Veteran's service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran's diabetic retinopathy is service connected. ORDER Entitlement to service connection for diabetic retinopathy is denied. REMAND As noted above, in a February 2010 rating decision, the RO granted entitlement to a noncompensable disability rating for coronary artery disease. The Veteran timely expressed disagreement with the rating, however, the AOJ has yet to issue an SOC. As also noted above, in a June 2012 rating decision, the RO granted entitlement to a noncompensable disability rating for carotid artery disease. The Veteran timely expressed disagreement with the rating, however, the AOJ has yet to issue an SOC. As also noted above, in a September 2017 rating decision, the RO severed service connection for coronary artery disease due to a clear and unmistakable error, effective December 1, 2017. The Veteran timely expressed disagreement with the rating, however, the AOJ has yet to issue an SOC. Where VA fails to furnish a claimant with an SOC in accordance with statutory or regulatory requirements, then the appropriate remedy is for the Board to remand the matter to the AOJ in order to issue an SOC. See Manlicon, 12 Vet.App. at 240-41. Accordingly, the case is REMANDED for the following action: Issue a statement of the case that addresses the issues of entitlement to a compensable initial rating for coronary artery disease, a compensable initial rating for carotid artery disease, whether severance of service connection for coronary artery disease was proper. Inform the Veteran that he must perfect a timely appeal for those issues to be considered by the Board. If, and only if, the Veteran perfects the appeal, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs