Citation Nr: 21064461 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-55 462 DATE: October 20, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for vitamin B-12 deficiency is granted. Entitlement to an initial disability rating higher than 10 percent prior to March 14, 2018, for diabetes mellitus type 2 (diabetes), is denied. Entitlement to an earlier effective date of May 21, 2014, for the assignment of an initial 10 percent rating for diabetes, is granted. FINDINGS OF FACT 1. A preponderance of the evidence shows that hypertension existed prior to service, was not aggravated during service, and has not been aggravated by diabetes. 2. The evidence is in a state of relative equipoise regarding whether vitamin B-12 deficiency is due to diabetes medication. 3. Prior to March 14, 2018, diabetes was treated by a restricted diet, but not by regulation of activities or by insulin or a hypoglycemic agent. 4. Diabetes has been rated 10 percent disabling from September 2, 2014 and 20 percent disabling from March 14, 2018. 5. The Veteran claimed entitlement to service connection for diabetes on October 30, 2012 but was not diagnosed with the disability until May 21, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306, 3.310. 2. The criteria for service connection for vitamin B-12 deficiency are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for an initial disability rating higher than 10 percent for diabetes prior to March 14, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.119. 4. The criteria for an effective date of May 21, 2014, for the assignment of a 10 percent initial disability rating for diabetes, are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This matter has been subject to multiple decisions by the Board and by the U.S. Court of Appeals for Veterans Claims. Most recently, in May and December 2020, the Board remanded the case for additional development. The claims are again before the Board for appellate review. Service connection The Veteran claims that he developed hypertension and a vitamin B-12 deficiency during service as the result of exposure to herbicides in the Republic of Vietnam, and as the result of service-connected disability. Relevant legal authority Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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 (Fed. Cir. 2004). In all cases, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The "presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service." Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). Where a pre-existing disability is noted upon entrance examination and is shown to have increased in severity during service, it is presumed that such increase in severity caused aggravation of the pre-service disorder, unless clear and unmistakable evidence establishes that the increase represents the natural progression of the condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Certain chronic disorders are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those disabilities specified as chronic under 38 C.F.R. § 3.309 (a)). Hypertension is a listed disorder under this provision. VA regulations provide for presumptive service connection for certain disorders that may have resulted from service in Vietnam. A veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era (beginning on January 9, 1962 and ending on May 7, 1975) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6)(ii). Neither hypertension nor vitamin deficiency is a listed disorder under 38 C.F.R. § 3.309(e). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Hypertension The evidence addressing the claim of entitlement to service connection for hypertension consists of lay statements from the Veteran, service treatment records (STRs), private and VA treatment records, an October 2012 letter from a private physician, and VA compensation examination reports dated in February 2020 and January 2021. The evidence indicates that the Veteran entered service with hypertension. As such, the Board will first address whether service aggravated his hypertension. See 38 C.F.R. § 3.306. The Board will then address the Veteran's assertion that hypertension is secondary to service-connected diabetes. See 38 C.F.R. § 3.310. The STRs indicate that the Veteran was initially denied entrance into service because of elevated blood pressure noted in an induction report of medical examination. The Veteran was ultimately inducted into service after later blood pressure testing (in March 1964) indicated moderated blood pressure of 140/80. The STRs note multiple blood pressure readings during service. None was abnormal. A blood pressure reading of 110/68 was noted in the March 1966 separation report of medical examination. Lastly, the record does not contain evidence indicating hypertension problems in the years following service. The earliest post-service evidence indicating hypertension is dated in the early 2000s, over 35 after service. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Inasmuch as medical examination prior to service induction noted hypertension, a presumption of soundness prior to service with regard to blood pressure does not attach here. As such, the primary question is whether hypertension increased in severity during service and, if so, whether clear and unmistakable evidence shows that hypertension was not aggravated during service. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The record contains one medical opinion addressing this issue. The February 2020 VA report addresses whether service aggravated hypertension. The examiner found that hypertension existed prior to service, but that it did not increase in severity during service. In support, the examiner cited the blood pressure readings during service to include the normal reading noted upon separation. The examiner therefore found it unlikely that current hypertension relates to service. With regard to the question of whether hypertension is secondary to diabetes: the January 2021 VA report is the only medical opinion addressing the issue of secondary service connection in this matter. See 38 C.F.R. § 3.310. The examiner noted the diagnoses of hypertension and diabetes but found it unlikely that the two disorders related to one another. In support, the examiner cited evidence showing that hypertension, diagnosed in 1963, preexisted diabetes for many years, and cited evidence showing that hypertension has not worsened since the diagnosis of diabetes in 2014. The examiner noted VA treatment records showing that hypertension has been under control since 2014 "[t]here is no recorded evidence of uncontrolled hypertension, after diagnosis of diabetes mellitus [in] 2014, ER visits nor hospitalizations due to uncontrolled hypertension, nor related complications. There is no evidence of renal involvement (microalbuminuria) in Veteran's VA electronic files." The February 2020 and January 2021 VA reports and opinions are probative. They are based on the evidence of record, are explained with citation to facts in the record, and are based on a review of the claims file. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Indeed, the opinions are more persuasive than the Veteran's theories regarding causation. The Veteran is competent to describe observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine issues such as diagnosis and etiology. The development of hypertension is an internal pathology beyond his capacity for observation. It is a medical matter. Its development is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On this more complex question, the VA opinions are more credible than the Veteran's. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The probative value of the Veteran's lay assertions is therefore outweighed by the VA opinions on the questions of etiology here. The Board has considered the October 2012 letter from a private physician, which states that multiple disorders such as hypertension "are related and secondary to" diabetes. The opinion is not probative, however, because the physician did not connect hypertension and diabetes in this case. Indeed, at the time of the letter, the Veteran had not been diagnosed with diabetes yet. Given that fact, and the fact that hypertension was diagnosed decades earlier, the October 2012 letter cannot be regarded as a medical finding stating that the Veteran's particular hypertension is at least as likely as not related to diabetes. Rather, the physician provided a general medical statement rather than a statement of medical probability in this case. It is therefore of limited probative value on the questions before the Board. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions that are speculative, general, or inconclusive in nature cannot support a claim). Based on the foregoing, the Board finds that the probative evidence of record preponderates against the claim of entitlement to service connection for hypertension. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Vitamin B-12 deficiency By contrast, service connection is warranted for a vitamin B-12 deficiency. The Veteran claims that he developed vitamin B-12 deficiency as the result of exposure to herbicides during service and as the result of service-connected diabetes. The only medical opinion of record addressing his claim is found in a VA report dated in May 2021. In that report, the examiner found that the Veteran had the deficiency but that it was likely unrelated to service and herbicides exposure, or to diabetes. In supporting the opinion, however, the examiner stated that the Veteran takes metformin for diabetes and that "metformin causes vitamin B12 deficiency by reducing B12 absorption in the gastrointestinal tract." The examiner found that the deficiency existed prior to metformin use, so that the deficiency likely did not begin due to diabetes medication. But the examiner did not address further whether diabetes itself caused the deficiency, or whether the current metformin use interacts with the deficiency. Moreover, the examiner appeared to conclude that service connection would not be warranted because the deficiency is not noted among the disorders eligible for presumptive service connection based on herbicides exposure under 38 C.F.R. § 3.309(e). This is faulty reasoning because ineligibility for presumptive service connection under 38 C.F.R. § 3.309(e) does not preclude a finding of direct service connection under 38 C.F.R. § 3.303 and is simply irrelevant to the question of secondary service connection under 38 C.F.R. § 3.310. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As this is the only medical opinion addressing the claim, the Board cannot find that the medical evidence preponderates against the claim. Notwithstanding the examiner's finding, the statement that vitamin B-12 deficiency is a complication of metformin use places the evidence is a state of relative equipoise on the question of whether a secondary service connection finding is warranted. 38 C.F.R. § 3.310. As such, the Board cannot find that a preponderance of the evidence is against the claim. This is therefore an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased rating On October 30, 2012, the Veteran filed an original claim of entitlement to service connection for diabetes. In a May 2013 rating decision, the RO denied the claim, citing evidence indicating that the Veteran had not been diagnosed with diabetes. The Veteran appealed the decision by filing a timely notice of disagreement (NOD). Later in the appeal period, in December 2014, the RO granted the claim, and assigned a 10 percent initial disability rating effective September 2, 2014. The Veteran did not file a NOD against the decision. However, within one year of notification of the decision, the Veteran underwent VA examination into diabetes. In September 2015, the RO included in the claims file a report of the examination. As such, the initial claim remained on appeal when, in response to a July 2016 rating decision continuing the initial rating of 10 percent, the Veteran filed an August 2016 NOD against the rating assigned. See 38 C.F.R. § 3.156(b). Then, following a September 2016 Statement of the Case, the Veteran filed a September 2016 substantive appeal. In October 2018, the Board granted a rating increase to 20 percent effective March 14, 2018 but denied an initial rating in excess of 10 percent prior to that date. The Veteran appealed the initial rating assigned prior to March 14, 2018. In August 2019, the Court remanded this issue for additional consideration. The question before the Board is whether a higher initial rating was warranted at any time between October 30, 2012 and March 14, 2018. Relevant legal authority Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. The Veteran's diabetes has been rated under Diagnostic Code (DC) 7913 of 38 C.F.R. § 4.119. This DC authorizes compensable ratings of 10, 20, 40, 60, and 100 percent. As the disorder has been rated as 10 percent disabling during the relevant appeal period (i.e., prior to March 2018), the Board's inquiry will focus on whether the 20, 40, 60, or 100 percent rating has been warranted during that time period. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under DC 7913, a 20 percent rating is warranted for diabetes when symptoms require one or more daily injection of insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes when diabetic symptoms require insulin, restricted diet, and regulation of activities for management. A 60 percent rating is assigned when diabetic symptoms also include episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations a year or twice a month visits to a diabetic care provider, and complications that would not be compensable if separately evaluated. A 100 percent rating requires more than one daily injection of insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization at least 3 times per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. 38 C.F.R. § 4.119, DC 7913; Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). Medical evidence is required to support this criterion; a medical provider must indicate that the claimant's "diabetes is of such severity that he should curtail his activities such as to avoid strenuous activity." Id. at 364. The rating criteria for diabetes are successive. Successive criteria exist where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Evidence and Analysis The evidence in this matter consists of lay assertions from the Veteran, private and VA treatment records dated between 2012 and 2018, an October 2012 private letter from a physician, and VA compensation examination reports dated in May 2013, November 2014, September 2015, February 2017, March 2018, and May 2021. Effective date: The RO has assigned an effective date of September 2, 2014 for the award of service connection for diabetes and for the award of a 10 percent initial rating for the disability. The record indicates that an earlier effective date is warranted for both. In the October 2012 letter accompanying the original claim of entitlement to service connection, the private physician indicates that the Veteran may have had pre-diabetes at that time. The physician stated that the Veteran presented with episodes of elevated blood sugar levels, and that he had been told previously "that he suffers from pre-diabetes." But the physician did not diagnose diabetes. Rather, the physician suggested VA determine whether the Veteran had diabetes. Subsequently, the May 2013 VA examiner found that the Veteran did not have diabetes. The treatment records are also negative for diagnosed diabetes at that time. On May 21, 2014, however, VA treatment records indicate a "new diagnosis" of diabetes mellitus type 2. Subsequent VA reports dated between 2014 and 2018 confirm the diagnosis. Based on this information, an effective date of service connection between October 30, 2012 and May 21, 2014 would be unwarranted. Although the Veteran had a claim pending during that time, entitlement to service connection was not established then the record demonstrates he did not then have diabetes. In short, the date entitlement arose was "later" than the date of receipt of the claim. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Nevertheless, an earlier effective date of service connection, and of the assignment of a compensable initial rating, is warranted. Rather than September 2, 2014, the effective date for both should be May 21, 2014. It was clear on that date that the Veteran had diabetes and that treatment for the disability required a restricted diet (see below). Initial rating: The question now is whether, from May 21, 2014, a rating higher than 10 percent was warranted. As noted by the Board in the October 2018 decision, the evidence did not indicate that diabetes involved use of insulin, use of a hypoglycemic agent, regulation of activities, or ketoacidosis or hypoglycemic reactions requiring hospitalizations or visits to a diabetic care provider. This is made plain in the VA treatment records and in the VA reports dated in November 2014, September 2015, February 2017, March 2018. The Court remanded the issue to the Board because VA treatment records dated in 2014 indicated possible use of insulin or a hypoglycemic agent. Specifically, as noted in the joint motion for partial remand leading to the Court remand, a May 2014 treatment record lists "oral agent" under "current diabetes therapy" and January and March 2014 treatment records indicate prescription of syringes. In response to the Court remand, the Board remanded the issue in May 2020 for medical inquiry into whether evidence dated at any time prior to March 2018 indicated use of either insulin or a hypoglycemic agent. In the subsequent May 2021 VA report, the examiner stated that prior to March 2018, the Veteran's diabetes mellitus was mild and managed only by restricted diet. In 2014 Veteran was not prescribed an oral agent for diabetes. Only restricted diet. Metformin was prescribed in 2018. The prescribed syringes [must] have been a mistake or solicited by Veteran for administering another medication. The examiner further stated that it was not "until 2018" when the Veteran "was prescribed metformin 500 daily which is an oral agent taken by mouth not by syringes. Veteran has never used insulin as reviewed in record[.]" The examiner also noted continuing treatment with the hypoglycemic oral agent and restricted diet, but without requiring regulation of activities. The examiner added that the evidence continued to show the absence of ketoacidosis, hypoglycemic reactions, hospitalizations, and frequent diabetic care visits. In assessing the claim, the Board has considered the Veteran's lay assertions. He is competent to report observable symptoms such as those associated with a diabetic reaction (e.g., low energy). See Jandreau, supra. However, the nature and extent of his disability is beyond his capacity to observe or sense. Diabetes is an internal pathology involving the endocrine system. Questions such as whether diabetes requires regulation of activities or involves ketoacidosis or hypoglycemic reactions are medical matters beyond his capacity to observe. These matters, and questions regarding hospitalization and frequency of visits to a diabetic care provider, are best evidenced by medical insight, analysis, and documentation. See Woehlaert, supra. Indeed, the medical evidence is more credible on these questions. As such, the preponderance of the evidence is against assigning a higher initial disability rating prior to March 14, 2018. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. (Continued on the next page) In sum, the evidence continues to show that, prior to March 2018, the Veteran's diabetes was managed by restricted diet only. Thus, an initial rating higher than 10 percent prior to March 14, 2018 is not warranted under DC 7913. 38 C.F.R. § 4.119. Nevertheless, an earlier effective date is warranted for the assignment of the initial rating. The rating should be effective the date entitlement arose, which is the date on which diabetes was diagnosed May 21, 2014. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.