Citation Nr: 1807829 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-08 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for nerve problems of the left leg. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for vision problems. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from October 1967 to July 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issues entitlement to service connection for hypertension and vision problems 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's nerve disorder of the left leg is related to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a nerve disorder of the left leg have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310 (a). The Veteran asserts that his currently diagnosed nerve disorder of the left leg was caused by his service-connected diabetes mellitus. The Veteran was afforded a VA peripheral neuropathy examination in January 2012. The examination revealed moderate intermittent pain and numbness in the left lower extremity, decreased deep tendon reflexes in the bilateral knees and ankles, and decreased vibration in the left lower extremity. The examiner diagnosed left leg sciatica and determined that the Veteran did not have a diagnosis of peripheral neuropathy because his pain was confined to his left leg. The examiner explained that peripheral neuropathy usually developed in both legs; therefore, the Veteran did not have a diagnosis of peripheral neuropathy at the time of the examination. Instead, his left leg symptoms were more likely than not consistent with sciatica due to a back problem. The July 2017 Disability Benefits Questionnaire (DBQ) report and the October 2017 VA examination report indicated that the Veteran had a diagnosis of peripheral neuropathy and that it was a complication of his diabetes mellitus. The October 2017 VA examination report noted mild numbness and paresthesias or dysesthesias in the bilateral lower extremities. Examination also revealed mild incomplete paralysis of the bilateral lower extremities. The Veteran reported that his peripheral neuropathy symptoms started in 2017. The October 2017 VA examiner provided a diagnosis of peripheral neuropathy of the bilateral lower extremities. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's nerve disorder of the left leg, diagnosed as peripheral neuropathy in 2017, is secondary to his service-connected diabetes mellitus. The November 2012 VA examiner concluded that the Veteran did not have a diagnosis of peripheral neuropathy because neuropathy usually developed in both legs. Rather the Veteran's sciatica was more likely than not related to a back disorder. However, the October 2017 VA examination report showed peripheral neuropathy of the bilateral lower extremities. The July 2017 DBQ examiner and the October 2017 VA examiner found that the Veteran developed peripheral neuropathy as a complication of his service-connected diabetes mellitus. As such, the Board finds that his left leg nerve disorder is secondary to his service-connected diabetes mellitus. ORDER Entitlement to service connection for a nerve disorder of the left leg is granted. REMAND Hypertension The Veteran asserts that his hypertension is secondary to his service-connected diabetes mellitus. The January 2012 VA examiner found that the Veteran's hypertension was at least as likely as not due to and permanently aggravated by his diabetes mellitus. He had moderate hypertension, but did not have a known diabetic renal disease. It was explained that diabetes mellitus was known to accelerate the natural progression of hypertension, but that the Veteran's hypertension was not related to his diabetes mellitus. Specifically, the effects of the Veteran's diabetes mellitus were not severe enough to produce kidney disease, diabetic neuropathy, or diabetic retinopathy. However, the examiner also noted that out of the Veteran's problems list, "the only issues with clear possible links to DMII are hypertension...". Therefore, this opinion is not entirely clear. The Veteran was afforded an additional VA examination in April 2014. This examiner concluded that the Veteran's elevated blood pressure was not due to diabetes mellitus. No specific rationale was provided in support of this opinion. The September 2014 VA examiner opined that diabetes did not cause nor aggravate hypertension unless there was significant diabetic nephropathy. The Veteran's medical records did not show diabetic nephropathy, diabetic retinopathy, lack of proteinuria, or unsatisfactory renal function. The examiner determined that the Veteran had essential hypertension, which was not due to another medical condition. Rather, essential hypertension was the result of genetics, heredity, and aging. In July 2016, the Veteran submitted a letter from his VA treatment provider. It was noted that the Veteran's hypertension was due to having diabetes for an extended period of time. The Veteran also submitted a July 2017 DBQ. The examiner stated that the Veteran's hypertension was at least as likely as not caused by and aggravated by the service-connected diabetes mellitus. The Veteran reported longstanding hypertension since military service. The Veteran was afforded another VA examination in October 2017. The examiner concluded that his hypertension was at least as likely as not aggravated by his service-connected diabetes mellitus. The Veteran reported that his hypertension started in 1970 when he returned from Vietnam. The Board finds that another VA medical opinion is necessary to reconcile all of the medical evidence of record. The examination reports completed in January 2012, July 2016, and October 2017 indicated that the Veteran's hypertension was caused by or aggravated by his diabetes mellitus. The April 2014 and September 2014 examination reports indicated that his hypertension was not secondary to his diabetes mellitus. The September 2014 VA examiner explained that his diabetes mellitus was not severe enough to cause hypertension because there was no evidence to show his diabetes mellitus caused significant diabetic nephropathy. However, the July 2016 VA opinion related his hypertension to having diabetes mellitus for an extended period and did not appear to place any significance on whether the Veteran's diabetes mellitus caused significant diabetic nephropathy. Additionally, the July 2017 DBQ and the October 2017 VA examination reports noted the Veteran's report that his hypertension started when he returned from Vietnam. The medical opinions of record do not address direct service connection. Based on the above, the Board finds that another VA examination is required to reconcile the conflicting medical opinions of record. Eye The January 2012 and April 2014 VA examiners concluded that the Veteran did not have diabetic retinopathy. The Veteran also did not have any other eye disorder that was caused or aggravated by his service-connected diabetes mellitus. The examiner stated that his diabetes mellitus was not so severe as to produce diabetic retinopathy. In February 2012, the Veteran was provided a VA examination to assess any eye disorders. The diagnoses included cataracts, ocular allergy, and bilateral astigmatism. The examiner noted that the Veteran had a history of diabetes, but that there was no evidence of retinopathy. The examiner opined that the ocular allergy and bilateral astigmatism eye disorders were less likely as not related to diabetes mellitus. The examiner found that his cataracts were a part of the aging process. A July 2017 DBQ found that the Veteran did not have diabetic retinopathy or any other eye disorder caused or aggravated by diabetes mellitus. The October 2017 VA examiner concluded that the Veteran did not have diabetic retinopathy. However, the Veteran did have an eye disorder other than retinopathy that was caused by his diabetes mellitus. The examiner noted that a funduscopic examination of the right eye revealed a cataract. The Board finds that a VA examination is required to determine the nature and etiology of all eye disorders present during the period of the claim. The only examination of record to specifically address his eye disorders was conducted in February 2012, and the optometrist concluded that his eye disorders were less likely than not related to his diabetes mellitus. Examination reports completed in January 2012, April 2014, and July 2017 included similar findings. However, the October 2017 VA examiner diagnosed cataracts and found that the Veteran had an eye disorder other than diabetic retinopathy that was caused by his service-connected diabetes mellitus. Accordingly, the Board finds that another VA examination is warranted to determine the etiology of all eye disorders diagnosed during the appeal. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent VA and private medical records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of his currently diagnosed hypertension. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should address the following: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was incurred in, was caused by, or is otherwise etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused by or aggravated by his service-connected disabilities, to include his diabetes mellitus. In providing the requested opinion, the examiner must consider the Veteran's statements regarding the onset of his hypertension. The examiner must also reconcile the conflicting medical evidence or opinions of record. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 3. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, to determine the nature and etiology of all eye disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder was caused by or aggravated by his service-connected disabilities, to include his diabetes mellitus. In providing the requested opinion, the examiner must reconcile the conflicting medical evidence of record. A complete rationale must be provided for all opinions offered, and if the examiner cannot offer an opinion without resorting to mere speculation, the examiner should fully explain why this is the case and identify what additional evidence/information, if any, would allow for a more definitive opinion. 4. Finally, the RO or the AMC should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs