Citation Nr: 20002102 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 16-31 212 DATE: January 9, 2020 ORDER Entitlement to service connection for diabetic retinopathy is denied. Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable evaluation for service-connected left ear hearing loss is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus is denied. Entitlement to an effective date prior to January 22, 2014, for the award of a compensable evaluation for diabetic nephropathy is denied. REMANDED Entitlement to an initial evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected peripheral vascular disease of the right lower extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected peripheral vascular disease of the left lower extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetic peripheral neuropathy of the right lower extremity is remanded. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetic peripheral neuropathy of the left lower extremity is remanded. Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. There is no diagnosis of retinopathy in the record of evidence. 2. The evidence of record does not reflect right ear hearing loss for VA benefits purposes. 3. Throughout the period on appeal, the Veteran’s service-connected left ear hearing loss manifested in no greater than level I hearing loss. 4. The Veteran has been in receipt of the maximum available schedular rating for his service-connected tinnitus throughout the entire appeal period. 5. The evidence throughout the appeal period does not reflect definite decrease in kidney function; the presence of edema, albuminuria, or hyaline and granular casts; or hypertension due to renal function that would be rated as 10 or 40 percent disabling under Diagnostic Code 7101. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for diabetic retinopathy have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for an initial compensable evaluation for service-connected left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.85, 4.86, Diagnostic Code 6100. 4. The criteria for an initial evaluation in excess of 10 percent for service-connected tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.87, Diagnostic Code 6260. 5. The criteria for an effective date prior to January 22, 2014, for the award of a 60 percent rating for diabetic nephropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.104, 4.115a, 4.115b, 4.119. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1968 to June 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2013, April 2013, June 2015, and October 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before the Board in September 2019, but cancelled his hearing that same month. In the September 2019 correspondence canceling the hearing, the Veteran's representative requested that the record be left open for 60 days from the date of the hearing to submit additional evidence. The 60 days has passed; therefore, the Board will proceed to review the case. Service Connection 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 current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, 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 be granted on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-14 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or “when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). 1. Entitlement to service connection for diabetic retinopathy The Veteran applied for service connection for diabetic retinopathy in August 2015, but did not report any treatment for this condition. The Veteran has not offered any statements or evidence in support of this claim during its pendency. The Veteran’s VA treatment records indicate he is followed for eye health, including regular screening for diabetic retinopathy. However, eye examinations in April 2015, May 2016, August 2016, and April 2017 all indicate no diagnosis of diabetic retinopathy. These records all include the notation, “NIDDM s retinopathy, OU,” which indicates non-insulin-dependent diabetes mellitus (NIDDM) without (s) retinopathy, in both eyes (OU). Further, an October 2015 VA examination opinion indicates that the Veteran does not have diabetic retinopathy. The Veteran reported at a February 2014 diabetic retinopathy screening that he previously received a screening in 2013 in Thailand, but the private medical records he submitted do not include a diagnosis of diabetic retinopathy. As there is no diagnosis in the record of a current disability, service connection for diabetic retinopathy is not warranted. See Brammer, 3 Vet. App. at 225 2. Entitlement to service connection for right ear hearing loss For purposes of the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993); 38 C.F.R. § 3.385. There are two audiograms in the record. The Veteran’s private treatment records contain an audiogram performed in March 2012. The Board notes the Veteran applied for service connection for hearing loss in June 2014, and that evidence from more than a year prior is not a recent diagnosis. Regardless, the Board further notes that the March 2012 audiogram does not reflect auditory thresholds greater than 20 decibels in the right ear at any of the indicated frequencies, and that it does not contain speech recognition testing. Therefore, this audiogram does not tend to show a diagnosis of right ear hearing loss. The second audiogram was performed at the November 2014 VA audiological examination, and returned the following audiometric results: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Speech Discrimination RIGHT 5 10 10 15 20 100% LEFT 10 5 25 35 55 100% These findings also do not show current right ear hearing loss disability under VA regulations, as the auditory threshold does not exceed 25 decibels at any frequency. Likewise, the results of the Maryland CNC speech discrimination test is not less than 94 percent. There are no other audiograms in the Veteran’s VA treatment records. There are no audiograms in the record reflecting results meeting the criteria in VA regulations for a diagnosis of hearing loss in the right ear. Because no current disability is therefore of record, service connection for right ear hearing loss is not warranted. See 38 C.F.R. §§ 3.303, 3.385; see also Brammer, 3 Vet. App. at 225. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). 3. Entitlement to an initial compensable evaluation for service-connected left ear hearing loss Evaluations for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These evaluations are based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test, the Maryland CNC test, together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI-VII, Diagnostic Code 6100. Hearing acuity levels are assigned using just the puretone audiometry tests only where the examiner certifies that use of the speech discrimination test is not appropriate due to language difficulties or inconsistent speech discrimination test scores, for instance, or where exceptional patterns of hearing impairment exist. 38 C.F.R. §§ 4.85(c), 4.86. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. §§ 4.85(f) An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or where the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a)-(b). In these circumstances, the hearing acuity level will be assigned using either Table VI or Table VIa, whichever yields the higher level. Id. In November 2014, the Veteran was afforded a VA audiological examination, at which the Veteran reported difficulty hearing. The audiogram returned the following puretone threshold results, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 20 LEFT 10 5 25 35 55 The average puretone threshold was 13.75 decibels in the right ear and 30 decibels in the left ear. The Maryland CNC test revealed speech recognition ability of 100 percent in both ears. Applying these results to Table VI yields a finding of level I hearing loss in the left ear. See 38 C.F.R. § 4.85(d). As noted above, level I hearing is assigned to the non-service-connected right ear. Where hearing loss is at level I in both ears, a noncompensable disability evaluation is assigned under Table VII. 38 C.F.R. § 4.85(e). As noted above in the discussion regarding right ear hearing loss, there are no other audiograms in the record during the period on appeal. The evidence of record, when applied to the rating criteria in VA regulations, indicates that the Veteran’s hearing loss corresponds to a noncompensable evaluation. Therefore, the claim for an increased evaluation is denied. 4. Entitlement to an initial evaluation in excess of 10 percent for service-connected tinnitus The maximum schedular rating available for tinnitus is 10 percent. 38 C.F.R. § 4.87; see also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Throughout the entire initial rating period on appeal, the Veteran has been in receipt of a 10 percent disability rating for tinnitus. Under Diagnostic Code 6260, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260, Note 2. As the maximum schedular rating for tinnitus has already been assigned, a higher schedular rating is not available, and the Veteran’s claim for an evaluation in excess of 10 percent for bilateral tinnitus must be denied. Effective Date Unless specifically provided otherwise in the statute, the appropriate effective date for the award of service connection based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Different rules apply to increased ratings. If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 5. Entitlement to an effective date prior to January 22, 2014, for the award of a compensable evaluation for diabetic nephropathy Here, the Veteran was awarded a separate rating of 60 percent for nephropathy based on VA examinations triggered by his January 22, 2014, application for a total disability rating based on individual unemployability (TDIU). The separate rating for nephropathy was granted on the basis of the rating criteria for diabetes mellitus. Service connection was granted for diabetes mellitus with nephropathy in a March 2013 rating decision; the Veteran had a pending claim for an increased rating for diabetes mellitus on January 22, 2014. As such, the effective date for the 60 percent evaluation for nephropathy may be determined under the criteria applicable to increased ratings. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (separate ratings are to be provided for each compensable manifestation of diabetes). Renal involvement in diabetes mellitus is rated under Diagnostic Code 7541. 38 C.F.R. § 4.115b. This code directs that nephropathy be rated using the general formula for renal dysfunction. 38 C.F.R. § 4.115a. The general formula provides that a noncompensable evaluation is warranted for albumin and casts with history of acute nephritis or for hypertension that is noncompensable under Diagnostic Code 7101. A 30 percent rating is warranted for albumin that is constant or recurring with hyaline and granular casts or red blood cells, or where there is transient or slight edema or hypertension rated at least 10 percent under Diagnostic Code 7101. A 60 percent evaluation is warranted where there is constant albuminuria with some edema, or where there is definite decrease in kidney function, or where there is hypertension rated at least 40 percent under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is warranted where the diastolic blood pressure is predominantly 100 or more; the systolic blood pressure is predominantly 160 or more; or the veteran has a history of diastolic blood pressure that is predominantly 100 or more and requires continuous medication for control. A 40 percent evaluation is warranted where the diastolic pressure is predominantly 120 or more. The rating for diabetic nephropathy arose from the Veteran’s claim for an increased diabetes mellitus evaluation, based on a finding of definite decrease in kidney function. Therefore, the Board will consider evidence from within the appeal period for the diabetes rating, which began on September 11, 2010, a year prior to the date of his application for service connection for diabetes mellitus. There are no VA treatment records in the file pertaining to the period on appeal. The Veteran’s private treatment records reflect normal BUN, albumin, creatinine, and microalbumin to creatinine ratio levels in August 2011, September 2011, December 2011, and April 2012. There are no notations of hyaline or granular casts in the private treatment records. In January 2013, the Veteran’s private physician completed a series of VA disability benefits questionnaires, including one describing kidney conditions. The physician noted proteinuria but did not indicate its frequency, and further noted that the Veteran did not have hypertension caused by his renal dysfunction. The physician noted an acute episode of renal failure in December 2009 due to low blood pressure and cisplatin nephrotoxicity, which is a chemotherapy agent used in the Veteran’s non-service-connected cancer treatment. The physician reported laboratory results indicating normal BUN and eGFR levels, and a high creatinine level in December 2012, and a normal microalbumin to creatinine ratio in October 2012. In a hypertension disability benefits questionnaire, the private physician noted the Veteran had been prescribed medication to treat hypertension since December 2009. The physician further noted that the blood pressure reading the day the medication had first been prescribed was 149/80; the physician reported other blood pressure readings from later that month in the Veteran’s private medical records, but none were reported from the period prior to starting on the hypertension medication. Progress notes in August 2011, October 2012, and December 2012 all specify an absence of edema; the remainder of the private treatment records are silent for reports of edema. Finally, the Board notes that the September 2015 VA kidney conditions examination, on which the assignment of the separate 60 percent evaluation was based, does not indicate any specific dates of onset of the symptoms described. The laboratory and imaging results reported in this examination are from April and August 2015. After review of the evidence of record, the Board finds that an earlier effective date for the award of the 60 percent evaluation for diabetic nephropathy is not warranted. Prior to January 22, 2014, the evidence does not reflect a definite decrease in kidney function, as there is only one abnormal laboratory result in this time period. There is no evidence of constant or recurrent albuminuria, no evidence of hyaline and granular casts, and no evidence of edema. Although the Veteran was prescribed medication for hypertension during this period, there is insufficient evidence to conclude that this was prescribed based on a history of diastolic blood pressures elevated over 100. Further, the Board notes that the Veteran’s private physician indicated that the hypertension was not due to his renal dysfunction. Accordingly, there is no evidence in the record for the period prior to January 22, 2014, that corresponds to the criteria for a 60 percent or 30 percent evaluation for diabetic nephropathy. Therefore, a separate compensable rating for nephropathy is not warranted prior to January 22, 2014. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected PTSD is remanded. In June 2018, the Veteran sought mental health treatment, complaining of some depression and anxiety with fleeting, passive suicidal ideation. These reports reflect a worsening of the Veteran’s psychiatric symptoms since the most recent evaluation in September 2015. Therefore, a new VA examination is necessary to determine the current severity of the Veteran’s PTSD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected diabetes mellitus is remanded. The Veteran’s VA treatment records indicate that, in July 2018, he reported taking a prescription medication to treat his diabetes mellitus that was prescribed by a non-VA physician. This appears to indicate a worsening of the diabetes, as at the September 2015 VA examination, he reported taking a non-prescription supplement to control the disease. Because it appears that the disability has worsened since the last evaluation, a new VA examination is necessary to determine the current severity of the Veteran’s diabetes mellitus. See Palczewski, 21 Vet. App. at 181-82; Snuffer, 10 Vet. App. at 403. Further, the private records detailing the treatment for diabetes are not included in the record. On remand, these relevant records should be obtained. 3. Entitlement to an initial evaluation in excess of 20 percent for peripheral vascular disease of the right and left lower extremities, and entitlement to an initial evaluation in excess of 20 percent for diabetic peripheral neuropathy of the right and left lower extremities The peripheral vascular disease and diabetic peripheral neuropathy issues are intertwined with the diabetes mellitus issue remanded above, as development for the diabetes mellitus claim might produce evidence relevant to these evaluations. These issues are therefore also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 4. Entitlement to a TDIU is remanded. The TDIU issue is intertwined with all the issues remanded above and is also remanded at this time. See Henderson, 12 Vet. App. at 20; Harris, 1 Vet. App. at 183. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his diabetes mellitus that is not already of record, including any records from the private physician who prescribed the diabetes medication in or around July 2018. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected PTSD. The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the service-connected depressive disorder alone.  3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected diabetes mellitus. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.