Citation Nr: 21070567 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-30 376 DATE: November 24, 2021 ORDER Entitlement to service connection for a left leg fracture, claimed as secondary to service-connected disability, is denied. Entitlement to service connection for cirrhosis of the liver, claimed as secondary to service-connected disability, is denied. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. Entitlement to special monthly compensation (SMC) due to housebound status is denied. REMANDED The issue of entitlement to service connection for hypertension, due to herbicide agent exposure or secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's left leg fracture is not secondary to a service-connected disability (to include secondary causation or aggravation) and is not otherwise related to an in-service injury or disease. 2. The Veteran's cirrhosis of the liver is not secondary to a service-connected disability (to include secondary causation or aggravation) and is not otherwise related to an in-service injury or disease. 3. Throughout the relevant rating period, the Veteran's type II diabetes mellitus, was manifested by the requirement for insulin and restricted diet. 4. The Veteran does not have a single service-connected disability rated at 100 percent disabling and he is not substantially confined to his dwelling and the immediate premises due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left leg fracture, claimed as secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for cirrhosis of the liver, claimed as secondary to diabetes mellitus and pulmonary sarcoidosis, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.119, Diagnostic Code 7913. 4. The criteria for entitlement to SMC due to housebound status have not been met. 38 U.S.C. §§ 1114, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to August 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal of a February 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in March 2016 and June 2018. A review of the claims file shows that there has been substantial compliance with the Board's remand directives related to the issues of entitlement to service connection for left leg fracture and cirrhosis of the liver. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In December 2015, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be established for a disability resulting from diseases or injuries which are present in service or for a disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability which is shown to be proximately due to, the result of, or chronically aggravated by, a service-connected disease or injury. 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 by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. Entitlement to service connection for a left leg disability is denied. The Veteran contends that he has a left leg disability that is secondary to his service-connected diabetes mellitus. Specifically, the Veteran testified that he broke his left leg after falling due to dizziness caused by his diabetes. Because the Veteran has not raised, and the record does not reasonably raise, the issue of entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, although the Veteran has a current disability of fracture of the proximal left fibula, the preponderance of the evidence is against finding that the disability is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran was provided a VA opinion in October 2019. The October 2019 VA examiner noted that the Veteran sustained a left leg fracture in 2008 and opined that the Veteran's left leg fracture was not caused by or aggravated by a service-connected disability. As rationale, the VA examiner explained that the Veteran was affected by polio when he was five years-old, which resulted in the Veteran's right lower extremity being permanently weaker and shorter than the left. The VA examiner further explained that residuals from childhood poliomiellitis, deconditioning and morbid obesity are the more likely cause for the Veteran's left leg fracture. Additionally, the VA examiner explained that notes in November 2008 show that the Veteran's blood pressure readings were within normal limits and that the VA treatment records reflect a diagnosis of diabetes mellitus without attributing the Veteran's fall/injury to the effects of diabetes mellitus. The Board acknowledges that the Veteran reported that he believed his left leg fracture was caused by his diabetes mellitus. Lay statements are competent evidence to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the October 2019 VA examiner acknowledged the Veteran's reports that he fell, due to his diabetes mellitus. In this case, while the Veteran is competent to report observable symptoms, his opinion as to the cause of his symptoms simply cannot be accepted as competent evidence, as he does not have the medical training and expertise required to make such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Accordingly, the Board affords the October 2019 VA opinion more probative value than the Veteran's lay statements as to the etiology of his left leg fracture. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a left leg disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for cirrhosis of the liver is denied. The Veteran contends that he has cirrhosis of the liver that is secondary to his service-connected diabetes mellitus or pulmonary sarcoidosis. Specifically, the Veteran testified that his cirrhosis of the liver was caused by medication related to his diabetes mellitus. Because the Veteran has not raised, and the record does not reasonably raise, the issue of entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or was aggravated beyond its natural progress by a service-connected disability. The Board concludes that, although the Veteran has a current disability of cirrhosis of the liver, the preponderance of the evidence is against finding that the disability is proximately due to, the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran was provided a VA examination in October 2019. The VA examiner noted that the Veteran has a current liver disability and opined that the condition was less likely than not caused or aggravated by his service-connected disabilities. As rationale, the VA examiner explained that the Veteran's diabetes mellitus is under good medical control and closely followed up by his PCP. The VA examiner further explained that the Veteran's liver disease results from a combination of multiple factors, including a long-standing history of morbid obesity, ethanol ingestion, fatty liver, and polypharmacy. The VA examiner also opined that the Veteran's liver disease is less likely directly caused, related, or aggravated by his service-connected pulmonary sarcoidosis. As rationale, the VA examiner noted that the Veteran's pulmonary sarcoidosis is currently clinically inactive since the 1960's. As such, the VA examiner further opined that with a reasonable degree of medical certainty that the remote event of sarcoidosis is not the cause or aggravating factor to the Veteran's current hepatic manifestations. The Board acknowledges that the Veteran reports that he believes his cirrhosis of the liver was caused by his diabetes mellitus or pulmonary sarcoidosis. Lay statements are competent evidence to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the October 2019 VA examiner acknowledged the Veteran's reports that his liver disease was caused or aggravated by his diabetes mellitus or pulmonary sarcoidosis. In this case, while the Veteran is competent to report observable symptoms, his opinion as to the cause of his symptoms simply cannot be accepted as competent evidence, as he does not have the medical training and expertise required to make such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Accordingly, the Board affords the October 2019 VA opinion more probative value than the Veteran's lay statements as to the etiology of his liver disease. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for a liver disability. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 ; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 3. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. The Veteran seeks a higher disability rating for diabetes mellitus. The applicable rating period is from July 21, 2008, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o) (2). The Veteran's diabetes mellitus is currently rated as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of 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. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of 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. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). "Regulation of activities" is defined for purposes of Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." As such, for there to be a regulation of activities, medical evidence must show that occupational and recreational activities have been restricted. See Camacho v. Nicholson, 21 Vet. App. 360, 363-64. The question in this appeal is whether the Veteran's diabetes mellitus required one or more daily injection of insulin, restricted diet, and regulation of activities during the period on appeal. The Board finds that during the period on appeal the Veteran's diabetes mellitus required one or more daily injection of insulin but not regulation of activities, as is required for a rating in excess of 20 percent under Diagnostic Code 7913. The medical treatment records do not show that the Veteran's occupational and recreational activities were restricted. At a December 2009 VA examination, the VA examiner noted that the Veteran was treated with both insulin and oral medication more than once daily. Additionally, the VA examiner noted that the Veteran was instructed to follow a restricted or special diet and was not restricted in ability to perform strenuous activity. The Veteran was provided a VA examination in April 2016. The VA examiner noted that the Veteran requires insulin injection more than once per day. The VA examiner further noted that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. Additionally, the Veteran has already been afforded separate compensable ratings for his diabetic peripheral neuropathy. As such, the Veteran has been granted compensable ratings for these complications of his diabetes mellitus and they are not considered part of the diabetic process or included with the rating for the diabetes mellitus. The record does not show any other complications related to the service-connected diabetes mellitus. In summary, the Board finds that during the relevant period the Veteran's diabetes mellitus required restricted diet and daily insulin. Thus, a disability rating in excess of 20 percent is not warranted. To the extent the Veteran seeks a higher disability rating than those assigned previously, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49. 4. Entitlement to SMC due to housebound status is denied. The Veteran seeks entitlement to SMC based on housebound status. Entitlement to SMC based on housebound status will be granted when a veteran has a single service-connected disability rated as 100 percent disabling and, (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran is permanently housebound when he is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. 38 C.F.R. § 3.350 (i). In this case, the Veteran was granted SMC based on housebound status from August 7, 2008 to October 1, 2008, due to a temporary 100 percent rating for his service-connected irritable bowel syndrome and additional ratings independently rated at 60 percent or more. For the remainder of the period on appeal the Veteran did not have a single service-connected disability rated as 100 percent at any point. Furthermore, the record does not show that the Veteran has been permanently housebound by reason of his service-connected disabilities at any time during the appeal period. Specifically, the Veteran testified that he and his wife are RV'ers and they travel the country in their RV. The Veteran's VA treatment records show that he has difficulty with ambulation but is able to travel outside of his home on a regular basis. In summary, the Veteran did not have a single service-connected disability rated as 100 percent during the claim period and he is not considered to be actually housebound. As such, the preponderance of the evidence is against the claim for entitlement to SMC based on housebound status, and the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is caused by his exposure to herbicide agents or secondary to his service-connected diabetes mellitus. In June 2018, the Board directed the RO to provide the Veteran an addendum opinion as to whether the Veteran's hypertension is due to his presumed exposure to herbicide agents. The Veteran was provided a VA opinion in October 2019. The VA examiner opined that the Veteran's hypertension is less likely caused, related, or aggravated beyond its natural progression by his in-service herbicide agent exposure. As rationale, the VA examiner merely stated that the Veteran's elevated blood pressure is caused and aggravated by his excessive weight. The VA examiner did not address the Veteran's presumed exposure to herbicide agents as directed by the June 2018 Board remand. As such, the October 2019 VA opinion is not adequate for decision-making purposes and does not substantially comply with the Board's June 2018 remand directives. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Board remand). Additionally, the Veteran contends that his hypertension is secondary to his service-connected diabetes mellitus. The Veteran was provided a VA examination in April 2016. The VA examiner opined that the Veteran's hypertension is less likely than not proximately due to or the result of his service-connected diabetes mellitus. As rationale, the VA examiner explained that the Veteran's hypertension preceded the diagnosis of diabetes and that the available evidence shows no aggravation beyond the natural progression of hypertension by diabetes mellitus. However, the Board notes that for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131 (2017). As the VA examiner did not provide an adequate rationale for why the Veteran's hypertension is not caused by his service-connected disabilities, the opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the October 2019 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. Following review of the record, the examiner should express an opinion as to: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran's hypertension is related to his active service, to include, but not limited to, exposure to herbicides? Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner is asked to specifically address the latest findings from the National Academies of the Sciences, Engineering and Medicine (NAS) Veterans and Agent Orange: Update 11 (2018) regarding whether there is a relationship between the Veteran's hypertensive heart disease and exposure to herbicide agents (i.e. Agent Orange). The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a nonpresumptive direct incurrence basis. (b.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is proximately due to or the result of his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the hypertension is shown to be "predominantly" due to or result of diabetes mellitus, type II, but rather, whether there is any contributing degree of etiological relationship to diabetes mellitus, type II. (c.) If not, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is aggravated beyond natural progression by his service-connected disabilities, specifically to include his service-connected diabetes mellitus, type II. Rationale must be provided for the opinion proffered. In rendering the requested rationale, the examiner must note that it is not required that the hypertension is shown to be aggravated beyond natural progression "predominantly" by diabetes mellitus, type II, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected diabetes mellitus, type II. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for hypertension may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.