Citation Nr: 1817846 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 04-38 500A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected lichen planus and/or onychomycosis. 2. Entitlement to a compensable rating for lichen planus of the penis. 3. Entitlement to a rating in excess of ten percent for onychomycosis of the Veteran's nails and nail-beds. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran's Representative ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to November 1980, and from November 1982 to March 1997. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran's electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic systems. The Veteran was scheduled to testify before a Veterans Law Judge at a May 2006 Travel Board hearing. At that time, he was living abroad and unable to appear at the hearing. His service representative spoke on his behalf, and a transcript of that hearing has been associated with his claims file. In September 2016, the Board sent the Veteran a letter informing him that the Veterans Law Judge who had conducted the May 2006 hearing was no longer employed at the Board and asked him to indicate whether he wanted to attend a new hearing. The Veteran responded that he did not wish to have another hearing. See September 2016 Veteran Statement. In September 2006, the Board remanded the appeal for further development. The appeal has now been returned to the Board for further adjudication. The issue of entitlement to service connection for diabetes mellitus is addressed in the DECISION below. The other issues are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least in relative equipoise that the Veteran's diabetes mellitus is etiologically related to active duty service. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist To the extent that the action taken below is favorable to the Veteran, further discussion of VA's duties to notify and assist is not required at this time. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001). Laws and Regulations Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an 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, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process - or relatively close thereto - can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e), to include type II diabetes mellitus, if manifested to a compensable degree at any time after active service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6)(ii). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran seeks entitlement to service connection for diabetes mellitus, to include as secondary to service-connected lichen planus and/or onychomycosis. He has a diagnosis of diabetes mellitus. See, e.g., October 2009 Private Medical Examination. The Veteran's service treatment records do not reflect treatment for diabetes, but they do reflect treatment for skin and nail conditions. This treatment included "years of moderate steroid used applied many times per day." See, e.g., October 1990 Service Treatment Records. An in-service medical examination in June 1995 indicated that the Veteran had elevated cholesterol, but did not note any diabetes. The Veteran separated from active service in March 1997, and was first diagnosed with diabetes in November 1998. The Veteran has provided statements indicating that he began to have symptoms such as fatigue, frequent urination, and increased thirst as early as 1996. See, e.g., August 2015 Veteran Statement; November 1998 Private Medical Records. The Veteran is competent to report experiencing and observing these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In March 2015, a private doctor examined the Veteran and noted that diabetes was probably a result of the Veteran's long term steroid ointment usage. In May 2015, however, a VA doctor reviewed the Veteran's claims file and concluded that the topical application of steroids on a small area likely did not cause the Veteran's diabetes. Because of the conflicting opinions, the Board obtained an expert medical opinion in December 2017. The expert thoroughly reviewed the claims file, identified the criteria for diagnosing diabetes, and traced the Veteran's glucose levels and symptoms. The expert noted that the Veteran's glucose levels rose from 105 in July 1995; to an elevated, but not diabetic, 115 in March 1997; to 322 in November 1998. The expert opined that progression from impaired glucose metabolism to overt diabetes may be gradual, and determined that it is as at least as likely as not that the Veteran became diabetic within 12 months of his discharge from service in March 1997, eventually progressing to the 322 glucose reading in November 1998. The expert further opined that the use of topical steroids for treating the Veteran's service-connected skin disorders less likely than not caused or aggravated diabetes mellitus, as the medical literature did not support systemic effects of topical corticosteroids used over a small area. The Board finds the December 2017 expert opinion to be the most probative medical evidence of record, as it provides a thorough review of the Veteran's claims file and a well-reasoned medical opinion. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the diabetes mellitus manifested to a degree of 10 percent within one year from discharge from active duty service (under Diagnostic Code 7913, a 10 percent rating is warranted for diabetes managed by diet only). Therefore, diabetes mellitus shall be presumed to be etiologically related to service. 38 C.F.R. §§ 3.307, 3.309. ORDER Entitlement to service connection for diabetes mellitus is granted. REMAND The Veteran seeks entitlement to a compensable rating for lichen planus of the penis, and entitlement to a rating in excess of ten percent for onychomycosis of the nails and nail-beds. These skin disorders are currently both rated separately under diagnostic code (DC) 7899-7806, as analogous to dermatitis or eczema. See October 2006 Rating Decision. The record also contains evidence that these skin disorders may be more accurately classified under DC 7816 as psoriasis. See March 2015 Private Medical Examination. Additionally, the Veteran was last examined in March 2015, and other than examinations, the most recent relevant treatment records are from November 2005. In an August 2015 statement, the Veteran indicated that he now has 18 nails affected by the skin disorder, and the August 2016 representative statement indicates that the March 2015 examination does not reflect the current severity of the disorder. Under these circumstances, another VA examination is necessary to determine the current severity of his hypertension. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA should also attempt to obtain any relevant treatment records since November 2005. Accordingly, the case is REMANDED for the following action: 1. With the help of the Veteran as necessary, attempt to obtain any relevant private treatment records, including treatment records from RAF Lakenhearth in Suffolk, England, since November 2005. All attempts to do so must be documented in the claims file. 2. Thereafter, schedule the Veteran for VA examination to evaluate the nature and severity of service-connected lichen planus of the penis, and onychomycosis of the nails and nail-beds. In addition to examination of the Veteran, the examiner is requested to review the October 2009 and March 2015 private medical examinations and the Veteran's statements that 18 of his nailbeds are now affected. The examiner should provide opinion as to any current diagnosis of the skin symptomatology of the penis and nails. If an opinion cannot be provided without resort to speculation, the examiner should provide a rationale to support this conclusion. Additionally, the examiner should address the following: * Percentage of the entire body is affected by the combined skin disorder(s); * percentage of the exposed areas are affected; and * treatment for the disorder(s), including topical treatment and/or systemic treatment (such as corticosteroids or immunosuppressive drugs). 3. After completing the actions detailed above, readjudicate the claims. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran 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. See 38 U.S.C. §§ 5109B, 7112. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs