Citation Nr: 1808015 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 13-21 604A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus (DM), to include as due to herbicide exposure. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to an initial rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from December 1969 to June 1972 and from June 1976 to July 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned at a March 2016 Travel Board hearing. The hearing transcript is of record. The Veteran submitted additional evidence at the hearing, which has not yet been considered by the RO. However, the Veteran waived initial RO consideration of that evidence. The Board notes that in a June 2013 rating decision, the RO granted service connection for congestive heart failure. This was a full grant of the benefit sought with regard to the issue of entitlement to service connection for congestive heart failure, claimed as ischemic heart disease. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issues of entitlement to service connection for DM and entitlement to an initial rating in excess of 10 percent for hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran does not have a left shoulder disorder. CONCLUSION OF LAW A left shoulder disorder was not incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records, related to the claim being decided herein have been obtained. Furthermore, the Veteran was afforded the opportunity to submit additional evidence as well as testify at a Board hearing, which was held in March 2016. Neither the information of record nor the contentions of the Veteran suggest that additional pertinent information or evidence, related to the claim being decided at this time, can be obtained in this case through further assistance from VA. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); 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. Analysis Service treatment records show that in August 1970, the Veteran was seen for complaints of trauma to the left elbow and shoulder. Examination was normal. He was seen in follow-up for complaints related to the left elbow. In September 1981, he was seen after an accident during a jump. He reported right knee and right shoulder pain at that time. There are no further complaints or treatment for the left arm or shoulder during service and no left shoulder disability was diagnosed at discharge. There is no post-service medical evidence, VA or private, of a left shoulder disability, and the Veteran testified during his March 2016 Travel Board hearing that he has not sought any treatment for his left shoulder since his discharge, and that he has not been diagnosed with a left shoulder disability. See March 2016 Travel Board hearing transcript. As noted above, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is competent to report that he was diagnosed and treated for a left shoulder condition in service and that he has continued to experience symptoms of the disorder since his discharge. However, a left shoulder disorder has not been shown during the current appeal period. Pain without a diagnosed or identifiable underlying malady or condition, does not constitute a "disability" for which service connection may be granted). Sanchez-Benitez v. West, 13 Vet App 282 (1999). In the absence of a current disability, the claim of entitlement to service connection for a left shoulder disorder must be denied. ORDER Service connection for a left shoulder disorder is denied. REMAND Medical Records During his March 2016 Travel Board hearing, the Veteran testified that he has received treatment since his discharge for his DM and hypertension at the VA Medical Center in Salisbury, as well as the private Baptist Hospital in Winston-Salem, North Carolina. VA treatment records from the Salisbury VA Medical Center dated from October 2004 to March 2016 are of record. Private treatment records from Central Carolina Nephrology and High Rock Internal Medicine dated in 2010 are also of record. However, there are no treatment records from Baptist Hospital currently associated with the claims file. The procurement of potentially pertinent medical records referenced by the Veteran is required. As it appears that there may be available medical records that are not presently associated with the claims folder, a remand is required. See 38 C.F.R. § 3.159(c)(2). Increased Rating for Hypertension The Veteran was granted service connection for hypertension and a noncompensable rating in a January 2011 rating decision, based on evidence in the service treatment records of elevated blood pressure readings and a diagnosis of hypertension, blood pressure readings taken during VA outpatient treatment from October and November 2004, and blood pressure readings taken during private treatment in 2010. The Veteran was afforded a VA heart conditions examination in March 2013, and it was noted during the examination that he had been diagnosed with hypertension. However, no updated blood pressure readings were taken at that time. VA treatment records from the VA Medical Center (VAMC) in Salisbury dated from 2004 to 2016, show varied blood pressure readings, ranging from normal to high, with some indications over the years of hypertension being well-controlled on medication, and some indications that medication had to be adjusted to help control hypertension better and suggestions for other behavioral changes to help better control hypertension. The most recent records in March 2016 show a blood pressure reading of 118/70. The Veteran has not been given a VA examination to evaluate the current nature and severity of his service-connected hypertension since he was originally granted service connection for the disease seven years ago, in January 2011. The Veteran testified during his March 2016 Travel hearing that he is still experiencing symptoms from his hypertension, including elevated blood pressure readings and occasional dizziness. A remand is warranted to obtain a contemporaneous VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). The appellant is advised that it is his responsibility to report for the examinations and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claims. See 38 C.F.R. §§ 3.158 and 3.655 (2017). Accordingly, the case is REMANDED for the following action: 1. Updated VA treatment records should be obtained and added to the claims folder/efolder, to include records from the Salisbury VA Medical Center dated prior to October 2004 and from March 2016. 2. Contact the Veteran and request that he provide contact information as to all non-VA medical providers who have treated him for his hypertension and DM, including Baptist Hospital. Upon receipt of the requested information and the appropriate releases, the RO should contact Baptist Hospital, and all other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3 159(e). 3. Following completion of the above, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected hypertension. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should determine the Veteran's diastolic pressure as well as his systolic pressure and indicate what number (or range) for each has been predominant for the Veteran. Other complaints which the Veteran relates to hypertension should also be addressed. 4. After completion of the above, review the claims file and undertake any further development indicated. This shall include, if deemed necessary, affording the Veteran appropriate VA examination to determine the nature, extent, onset, and etiology of his currently demonstrated DM. 5. Then, the remaining claims should be readjudicated. If any claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs