Citation Nr: 21069538 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-55 925 DATE: November 18, 2021 ORDER New and material evidence having been received sufficient to reopen a previously denied claim for service connection for hypertension, the claim is reopened. Entitlement to service connection for hypertension, as secondary to the service-connected diabetes mellitus, type II (DMII), is granted. Entitlement to service connection left eye diabetic retinopathy is granted. Entitlement to a disability rating in excess of 20 percent for DMII is denied. Entitlement to a rating of 60 percent, but not higher, for service-connected diabetic nephropathy with acute renal failure and hypoosmolar nonketotic is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. An unappealed rating decision dated in December 2007 confirmed a prior denial of service connection for hypertension; new evidence received since the time of the final December 2007 decision relates to an unestablished fact necessary to grant service connection for hypertension. 2. The evidence is at least in equipoise as to whether the Veteran's hypertension was a result of, or was otherwise related to, his service-connected DMII. 3. The evidence is at least in equipoise concerning whether the Veteran had left eye diabetic retinopathy related to his service-connected DMII. 4. Throughout the appeal period, the Veteran's DMII did not require medical management of his physical activities. 5. Throughout the appeal period, the Veteran had decreased kidney function. 6. The Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The December 2007 rating decision denying service connection for hypertension is final; evidence received since then is new and material. 38 U.S.C. §§ 5108, 7015(c), 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria for service connection for hypertension, as secondary to the service-connected DMII, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for left eye diabetic retinopathy, as secondary to the service-connected DMII, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for an increased rating above 20 percent for DMII have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913. 5. The criteria for a disability rating of 60 percent, but no higher, for service-connected diabetic nephropathy with acute renal failure and hypoosmolar nonketotic have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, DC 7101, 4.115b; DC 7541. 6. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1968 to October 1970. Unfortunately, in January 2017, during the course of the appeal, he died. His surviving spouse has been substituted as the Appellant and continues his appeal. In the Veteran's substantive appeal VA Form 9, the Veteran requested a videoconference hearing before a Veterans Law Judge. The Appellant has withdrawn that request. Additionally, the Appellant has waived agency of original jurisdiction (AOJ) consideration of any evidence received in the claims file following the issuance of the August 2016 Statement of the Case. Therefore, the Board will adjudicate the claims with all available evidence. New and Material Hypertension As a threshold matter with regard to the current appeal, the Board must determine whether new and material evidence has been received sufficient to reopen a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A. Finality A rating decision becomes final if the veteran does not file an appeal or submit new and material evidence within one year of the issuance of the rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. In December 2007, the agency of original jurisdiction (AOJ) confirmed a prior denial of service connection of hypertension. The claim was denied because the AOJ determined that there was no evidence of a chronic disability associated with the Veteran's active duty or his service-connected DMII. The Veteran did not appeal that decision, and no new and material evidence was received within one year thereafter. Accordingly, the August 2006 decision became final. B. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.§ 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption is rebuttable when the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993) (evidentiary assertions are presumed true except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In deciding whether new and material evidence has been received, the Board looks to the evidence received since the last final denial of the claim on any basis. Bostain v. West, 11 Vet. App. 124, 126-27 (1998). The threshold for deciding whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a decision as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Since the December 2007 decision, the Veteran filed a claim to reopen the issue of hypertension in September 2013, which was denied in an August 2014 decision due to a lack of new and material evidence showing that a chronic hypertensive disability is associated with his active duty or his service-connected diabetes mellitus. The Veteran appealed. The basis of the AOJ's prior denial of service connection for hypertension in December 2007 was a lack of competent evidence of a chronic hypertensive disability associated with the Veteran's active duty or his service-connected DMII. Relevant evidence received since the previous final denial in December 2007 includes a medical opinion stating that the Veteran's hypertension was related to his service-connected DMII. This opinion, along with additional medical records, constitutes new and material evidence. Thus, the Board finds that this previously denied claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the of filing the claim for service connection, or during the pendency of that claim, even if the disability resolves prior to a final decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). If a veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). A layperson is generally incapable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); 38 C.F.R. § 3.159(a)(2). A decision as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of his/her present condition (e.g., whether his/her present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Appellant contends that the Veteran's hypertension was caused by his service-connected DMII. Accordingly, the Board will center its discussion on the question of whether secondary service connection for hypertension is warranted. After a complete and thorough review of the claims folder, the Board finds, in resolving reasonable doubt in the Appellant's favor, that the evidence is at least in relative equipoise concerning whether the Veteran's hypertension is related to his service-connected DMII. The Veteran had documented hypertension. VA treatment records indicate his hypertension began when he was diagnosed with DMII. At the March 2015 examination, Dr. G.S. noted that the Veteran had hypertension, which requires an additional evaluation. In an accompanying opinion, Dr. G.S. stated that the Veteran's hypertension was more likely than not due to his service-connected DM. The Board notes that previous denials of the Veteran's claim for service connection for hypertension referenced a May 2006 examination in which a VA examiner opined that the Veteran's hypertension was less likely than not related to his DMII. While the August 2006 decision outlines the findings of that examination, the record of May 2006 examination report is not in the claims file. As such, that opinion will not be considered by the Board. Because the Board is granting the claim for hypertension herein, there is no prejudice to the Appellant by adjudicating this claim without the May 2006 examination report. While the March 2015 opinion is unsupported by medical rationale, there is no question to its conclusion. Because the Veteran's DMII is service-connected, and the hypertension has been associated with DMII, both in treatment records and examination, the Board resolves all evidence in favor of the Veteran to find that there is at least relative equipoise that he had hypertension attributable to his service-connected DMII. Thus, service connection for hypertension, as secondary to the service-connected DMII, is warranted. Left Eye Disability The Appellant contends that the Veteran had an eye condition, including diabetic retinopathy, that was caused by his service-connected DMII. The Board finds that, resolving all doubt in the Veteran's favor, the evidence is at least in relative equipoise concerning whether he had diabetic retinopathy of his left eye related to his service-connected DMII. At a February 2013 VA examination, the examiner initially remarked that there was no diagnosed eye condition, to include diabetic retinopathy, and that his ocular health was good. In the same report, however, the examiner remarked that the Veteran had mild left diabetic retinopathy. In October 2013, the Veteran denied a history of diabetic retinopathy. However, in a November 2013 private treatment record, the Veteran's treatment provider indicated the Veteran's DMII was complicated by possible retinopathy. While the evidence is somewhat unsupported by medical rationale, what is clear, is that during course of the appeal the Veteran was diagnosed with mild diabetic retinopathy of his left eye. Because the Veteran's DMII is service-connected, and his left eye condition was diagnosed as diabetic retinopathy, the Board resolves all evidence in favor of the Veteran to find that there is at least relative equipoise that he had diabetic retinopathy of his left eye attributable to his service-connected DMII. Service connection for diabetic retinopathy of the left eye is warranted. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating a veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that, where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that, in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diabetes Mellitus, type II The Appellant contends that the Veteran's diabetes mellitus warranted a rating in excess of 20 percent. The Board finds that throughout the appeal period, the Veteran's DMII symptoms did not warrant a rating in excess of the currently-assigned evaluation of 20 percent. In this regard, the Board notes that the next higher rating of 40 percent requires the need for one or more daily injection of insulin, restricted diet, and regulation of activities. DMII requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, is rated 60 percent disabling. DMII requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations 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, is rated 100 percent disabling. 38 C.F.R. § 4.119 DC 7913. Pursuant to DC 7913, all ratings in excess of 20 percent are not warranted without medically required "regulation of activities." The term "regulation of activities" is defined in the rating criteria for a 100 percent disability rating under DC 7913 as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" discussed in the 40 percent and 60 percent disability ratings under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007). For VA purposes, "regulation of activities" means physician-directed restrictions on strenuous physical activities in an effort to control diabetic complications or prevent injury. Medical evidence is required to show that both occupational and recreational activities have been restricted. Id. ("[T]he restriction on both types of activities is a means of showing the severity of the disability."). In April 2012 the Veteran was hospitalized for diabetic ketoacidosis. The hospitalization report notes that the Veteran was not properly managing his insulin injections. On VA examination in February 2013, the Veteran's DMII was managed by restricted diet, oral hypoglycemic agent, and more than one insulin injection per day. The examiner also noted avoidance of strenuous occupational and recreational activities was needed in order to avoid hypoglycemic episodes. On VA examination in April 2014, the Veteran's diabetes required insulin more than one time per day, but his activities were not regulated as part of medical management of his condition. He did not experience any unintentional weight loss, hypoglycemic reactions, or ketoacidosis requiring hospitalizations and he needed less than two visits per month with his diabetic care provider. The examiner noted that there were no other physical findings or indications of additional conditions caused or aggravated by the Veteran's diabetes mellitus. On examination in March 2015, Dr. G.S. indicated that the Veteran is prescribed insulin more than one injection per day, and did not require regulation as part of medical management of his diabetes mellitus. Additionally, there was no evidence of progressive weight loss, loss of strength, or hypoglycemia requiring provider care during the previous 12 months. Private treatment notes from May 2016 show that the Veteran's DMII was poorly controlled. Evidence shows that, throughout the appeal period, the Veteran failed to comply with proper insulin control, which resulted in his diabetes mellitus being poorly controlled. It was noted that regulation of activities was not generally required for medical management of his diabetes. The February 2013 examiner noted that regulation of strenuous activities was necessary, but that there was no evidence that both occupational and recreational activities had been restricted, as required in 38 C.F.R. § 4.119, DC 7913. Without such evidence, a rating in excess of 20 percent is not warranted and cannot be granted. Diabetic Nephropathy With Acute Renal Failure & Hypoosmolar Nonketotic The Board notes that the Veteran's claim for service connection for a renal condition was granted and a rating of 30 percent for diabetic nephropathy was initially awarded. The Veteran appealed, and the Board finds that a rating of 60 percent, but no higher, is warranted for this disability. The relevant laws and regulations reflect that diabetic nephropathy is rated pursuant to the criteria of DC 7541 for renal involvement in diabetes mellitus, which is, in turn, rated as renal dysfunction under 38 C.F.R. § 4.115a. See 38 C.F.R. § 4.115b; DC 7541. Under DC 7541, a 30 percent rating is warranted for albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under DC 7101. A 60 percent rating is warranted for constant albuminuria with some edema; or, definite decrease in kidney function; or hypertension at least 40 percent disabling under DC 7101. An 80 percent rating is warranted for persistent edema and albuminuria with BUN 40 to 80mg; or creatinine 4 to 8mg; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating is warranted for renal dysfunction requiring regular dialysis, or precluding more that sedentary activity from one of the following; persistent edema and albuminuria; or, BUN more than 80mg; or, creatinine more than 8mg; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. 38 C.F.R. § 4.115b, DC 7541. On VA examination in February 2013, the examiner remarked that the Veteran experienced renal dysfunction not requiring regular dialysis, with proteinuria. At the March 2015 examination, Dr. G.S. noted that the Veteran had renal disease, which requires an additional evaluation. No additional evaluation was completed. For the entire appeal period, the Veteran was rated at 30 percent under DC 7941. A rating in excess of 30 percent requires constant albuminuria with some edema, definite decrease in kidney function, or hypertension at least 40 percent disabling. Medical records showed prolonged renal dysfunction, which is associated with a 60 percent rating. As such, a rating of 60 percent is warranted throughout the appeal period. A rating in excess of 60 percent requires persistent edema and albuminuria with BUN 40 to 80mg; or creatinine 4 to 8mg; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. None of these symptoms have been identified in the Veteran's medical records associated with his kidney dysfunction. Accordingly, throughout the appeal period, a rating in excess of 60 percent is not warranted. TDIU The Veteran contended that his service-connected DMII and complications thereof precluded gainful employment. After a complete and thorough review of the record, the Board finds that the evidence shows that his service-connected disabilities significantly contributed to his inability to work. A TDIU is warranted. In a November 2013 statement, Dr. G.S. stated that the Veteran had multiple medical problems including diabetes that was difficult to control, and DDD for which he was treated by pain management. The Veteran had not worked in some time, and it was unlikely that he would ever return to the workforce. In an accompanying March 2015 opinion, Dr. G.S. stated that the Veteran was unable to work due to hypertension, diabetes, neuropathy, and degenerative disc disease (DDD). The Board notes, however, that the Veteran has not been service-connected for DDD. At the April 2014 VA examination, the examiner remarked that the Veteran was capable of sedentary to light or moderative physical activity based on his service-connected diabetes and diabetic neuropathy. At that examination, his lower extremity diabetic neuropathy was noted to be mild, with decreased sensation in the feet and toes. In an August 2016 statement, the Veteran's diabetic care provider, Dr. J.S. indicated that the Veteran was unable to work due to his service-connected conditions, primarily, DMII and peripheral neuropathy. In records provided by the Social Security Administration (SSA), the agency determined the Veteran was disabled and unable to work from April 2012, due primarily to his spine disorder, with anxiety and diabetes mellitus listed as secondary conditions. In resolving any doubt in the Veteran's favor, the Board concludes that he had been unable to obtain or maintain substantial employment due to his service-connected disabilities. While SSA's findings are not binding on VA, SSA awarded the Veteran disability benefits for his nonservice-connected low back disability, with secondary factors of his DMII and psychiatric condition, which are both service-connected. Also, the Veteran's treating physicians opined that his DMII and related conditions prevented his ability to work. The record shows that the Veteran's diabetic neuropathy negatively impacted his physical ability to work and that his diabetes and PTSD reduced his ability to obtain and maintain gainful employment. Throughout the appeal period, the Veteran met the schedular criteria for a TDIU rating. 38 C.F.R. § 4.16(a). Based on the evidence of record, the Board finds the overall evidence is persuasive that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, he is limited both by his psychiatric disability and his neuropathy and DMII to the point that gainful employment was not possible. A TDIU is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.