Citation Nr: 21013034 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-02 850 DATE: March 8, 2021 ORDER Entitlement to service connection for bilateral diabetic retinopathy is granted. Entitlement to service connection for a bilateral eye disability, other than diabetic retinopathy, is denied. Entitlement to service connection for chronic bullous pemphigoid diabeticorum is granted. Entitlement to service connection for a skin disability, other than chronic bullous pemphigoid diabeticorum, is denied. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as secondary to service-connected diabetes mellitus, type II, is denied. REMANDED Entitlement to service connection for hypertension due to herbicide exposure is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed bilateral diabetic retinopathy is caused by his service-connected diabetes mellitus, type II. 2. The preponderance of the evidence is against a finding that the Veteran has a bilateral eye disability, other than diabetic retinopathy, that is proximately due to or aggravated by his service-connected diabetes mellitus, type II, or is due to a disease or injury in service, to include herbicide agent exposure. 3. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed chronic bullous pemphigoid diabeticorum is caused by his service-connected diabetes mellitus, type II. 4. The preponderance of the evidence is against a finding that the Veteran has a skin disability, other than chronic bullous pemphigoid diabeticorum, that is proximately due to or aggravated by his service-connected diabetes mellitus, type II, or is due to a disease or injury in service, to include herbicide agent exposure. 5. The preponderance of the evidence is against a finding that the Veteran has peripheral neuropathy of the bilateral upper extremities that is proximately due to or aggravated by his service-connected diabetes mellitus, type II, or is due to a disease or injury in service, to include herbicide agent exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral diabetic retinopathy on a secondary basis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for a bilateral eye disability, other than diabetic retinopathy, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for chronic bullous pemphigoid diabeticorum on a secondary basis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for entitlement to service connection for a skin disability, other than chronic bullous pemphigoid diabeticorum, are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for bilateral upper extremity peripheral neuropathy are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In August 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In a November 2019 Board decision, the claims were remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in November 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to service connection for a bilateral eye disability, to include diabetic retinopathy. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a). In this matter, the Veteran contends that he suffers from a bilateral eye disability, which is secondary to his service-connected diabetes mellitus, type II. See the Board hearing transcript dated August 2019. The Board initially observes that the Veteran is service-connected for diabetes mellitus, type II. See the Board decision dated November 2019; see also the rating decision dated March 2020. VA and private treatment records obtained following the November 2019 Board decision demonstrate that the Veteran is diagnosed with diabetic retinopathy. See, e.g., the VA treatment records dated November 2019. Accordingly, the evidence of record demonstrates that the Veteran has been diagnosed with bilateral retinopathy, which is caused by his service-connected diabetes mellitus, type II. Entitlement to service connection diabetic retinopathy is therefore warranted on a secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a skin disability, to include chronic bullous pemphigoid diabeticorum, claimed as secondary to service-connected diabetes mellitus, type II, or as due to herbicide exposure. The Veteran contends that he suffers from a skin disability due to herbicide exposure during his service in Thailand. See August 2019 the Board hearing transcript, pg. 18. He has alternatively contended that he suffers from skin disability as secondary to his service-connected diabetes mellitus, type II. Id. VA treatment records dated in October 2012 show that the Veteran reported having a skin rash on his arms, which had persisted for six or seven years. Private treatment records document treatment for ulcers, cellulitis, tinea unguium, and chronic venous stasis dermatitis. See, e.g., the private treatment records dated July 2015, September 2017, May 2019, and June 2019. The Veteran was recently diagnosed with chronic bullous pemphigoid diabeticorum. See the VA treatment records dated October 2020. In November 2019, the Board remanded the claim of entitlement to service connection for a skin disability in order to afford the Veteran with a VA examination. As such, on September 1, 2020 and November 3, 2020, the RO attempted to schedule the Veteran for a VA examination. However, the Veteran did not respond to the RO’s attempts to schedule the examination. See the Reports of General Information dated November 2020. On November 3, 2020, the RO conducted an inquiry to determine whether the Veteran was in-patient at a VA medical center (VAMC); however, he was not. See the Report of General Information dated November 2020. The November 2020 Supplemental Statement of the Case (SSOC) informed the Veteran of the finding that he had failed to cooperate with the scheduling of a VA examination, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Neither he nor his attorney has responded or provided good cause. Failure to receive notice of an examination could provide good cause for the failure to report. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Although the claims file does not include a copy of the letter notifying the Veteran of the date of his scheduled VA examination, this fact alone does not constitute good cause for failure to cooperate with the scheduling of a VA examination. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to agree to report for the needed VA examination, or asserted that he did not receive notice of the RO’s attempt to schedule the examination. Neither the Veteran nor his attorney has provided an explanation for the Veteran’s failure to cooperate with the scheduling a VA examination in this matter. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s original claim of compensation for service connection a skin disability must be rated based on the evidence of record. To this end, regarding the outstanding question of nexus, the Board notes that bullous diabeticorum is a blister-like skin condition, which manifests as a result of diabetes mellitus. See Dorland's Illustrated Medical Dictionary 263 (31st ed. 2007). Accordingly, the evidence of record demonstrates that the Veteran has been diagnosed with chronic bullous pemphigoid diabeticorum, which is caused by his service-connected diabetes mellitus, type II. Entitlement to service connection chronic bullous pemphigoid diabeticorum is therefore warranted on a secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether the Veteran’s diagnosed skin disabilities, other than chronic bullous pemphigoid diabeticorum, were caused or aggravated by his service-connected diabetes mellitus and/or as due to herbicide exposure, a nexus has not been established. However, none of these skin disabilities were noted during active service and there is no probative opinion of record relating the Veteran’s other diagnosed skin disabilities to his military service and/or his service-connected diabetes mellitus, type II. As noted in the November 2019 Board Remand, there is no probative evidence of record that addresses the etiology of the Veteran’s diagnosed skin disabilities other than chronic bullous pemphigoid diabeticorum. This is precisely why the Board requested a VA examination with medical opinion in this matter. However, as noted above, the Veteran failed to cooperate with the scheduling of a VA examination, so there are no adequate opinions of record addressing nexus. The Board has carefully considered the contentions of the Veteran that he suffers from a diagnosed skin disability (other than chronic bullous pemphigoid diabeticorum), which was incurred during his military service and/or as secondary to his diabetes mellitus, type II. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). To the extent the Veteran relates his diagnosed skin disabilities to his military service and/or his service-connected diabetes mellitus, type II, he is not competent to do so, as to opine as to the etiology of the diagnosed disabilities requires medical expertise. For the foregoing reasons, the preponderance of the available evidence is against the claim of entitlement to service connection for a skin disability other than chronic bullous pemphigoid diabeticorum. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, as indicated above, the evidence is at least in equipoise as to whether the Veteran is currently diagnosed with chronic bullous pemphigoid diabeticorum due to his service-connected diabetes mellitus, type II. Resolving reasonable doubt in favor of the Veteran, service connection for chronic bullous pemphigoid diabeticorum is warranted. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, claimed as secondary to diabetes mellitus, type II. Here, the Veteran has asserted entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, which he contends is secondary to his service-connected diabetes mellitus, type II. See, e.g., the Board hearing transcript dated August 2019. In this regard, it is undisputed that the Veteran is service connected for diabetes mellitus, type II. See the rating decision dated March 2020. As indicated in the November 2019 Board Remand, the claims file does not confirm a diagnosis of diabetic peripheral neuropathy of the bilateral upper extremities. Notably, electromyographical (EMG) testing conducted in November 2013 documented ulnar neuropathy of the right elbow. A continuing diagnosis was indicated in the Veteran’s VA treatment records. See, e.g., the VA treatment records dated July 2015. At the August 2019 Board hearing, the Veteran testified that he suffers from neurological symptoms of his bilateral upper extremities. In November 2019, the Board remanded the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities in order to afford the Veteran with a VA examination to address the crucial questions of diagnosis and nexus. As such, on September 1, 2020 and November 3, 2020, the RO attempted to schedule the Veteran for a VA examination. However, the Veteran did not respond to the RO’s attempts to schedule the examination. See the Reports of General Information dated November 2020. On November 3, 2020, the RO conducted an inquiry to determine whether the Veteran was in-patient at a VAMC; however, he was not. See the Report of General Information dated November 2020. The November 2020 SSOC informed the Veteran of the finding that he had failed to cooperate with the scheduling of a VA examination in this matter, and also provided notice of the provisions of 38 C.F.R. § 3.655(b). Failure to receive notice of an examination could provide good cause for the failure to report. See Kyhn, supra. Although the claims file does not include a copy of the letter notifying the Veteran of the attempts to schedule him for an examination, this fact alone does not constitute good cause for failure to report. Critically, the Veteran has not disputed the report in the SSOC that he failed without good cause to agree to report for the needed VA examination, or asserted that he did not receive notice of the RO’s attempts to schedule him for an examination. Neither the Veteran nor his attorney has provided an explanation for the Veteran’s failure to cooperate with the scheduling a VA examination in this matter. Thus, the Board finds that the provisions of 38 C.F.R. § 3.655(b) apply, and that the Veteran’s original claim of compensation for service connection for peripheral neuropathy of the bilateral upper extremities must be rated based on the evidence of record. In this matter, the record does not support a finding that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper extremities. His treatment records and examination reports do not document any such diagnosis. In fact, VA and private treatment records detail findings only as to peripheral neuropathy of the bilateral lower extremities (for which the Veteran is already service-connected) and not as to the claimed peripheral neuropathy of the bilateral upper extremities. See, e.g., the VA treatment records dated October 2020 and the private treatment records dated August 2019. Crucially, the most probative evidence of record, particularly the VA and private treatment records, cited above, do not show that the Veteran currently has a diagnosis of peripheral neuropathy of the bilateral upper extremities. In the absence of a current disability, service connection is not warranted. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, evidence prior to the date of claim must be considered in determining whether the current disability requirement has been met. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the above evidence reflects that the Veteran does not have peripheral neuropathy of the bilateral upper extremities. To the extent the Veteran asserts that he has currently diagnosed peripheral neuropathy of the bilateral upper extremities as secondary to service-connected diabetes mellitus, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. The general principle that he experiences some pain or discomfort, which might be a symptom of a disability manifested by irregular heartbeat or itching, has some tendency to establish a diagnosis. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Similarly, the Board finds no indication, nor is it specifically contended, that the Veteran has a functional impairment in earning capacity. While the record contains the Veteran’s statements that he is currently experiencing upper extremity symptoms, there is no upper extremity peripheral neuropathy has been identified in the clinical evidence of record nor is there any indication that the Veteran’s claimed symptoms reached the level of a functional impairment of earning capacity. Finally, the record contains no indication that any current upper extremity peripheral neuropathy, ulnar neuropathy, or claimed symptoms are causally related to an in-service disease or injury or a service-connected disability. For the foregoing reasons, the preponderance of the available evidence is against the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, claimed as due to herbicide exposure, is remanded. As indicated above, the matter of entitlement to service connection for hypertension was remanded by the Board in a November 2019 decision. In the decision, the Board noted the Veteran’s assertion of entitlement to service connection for hypertension, which he contends was due to exposure to herbicides. See, e.g., the August 2019 Board hearing transcript. The Board also found that the Veteran was exposed to herbicides during his service in Thailand from 1969 to 1970. See the Board decision dated November 2019. The Board therefore remanded this matter in order to afford the Veteran a VA medical opinion to address the etiology of his claimed disability. In providing his/her opinion, the examiner was required to consider the most recent NAS Update as it relates to the Veteran’s claim. A review of the claims file shows that the RO attempted to schedule the Veteran for an in-person VA examination in September 2020 and again in November 2020 to address his claimed hypertension. However, as described above, the Veteran did not cooperate with the scheduling of the VA examination. Critically, however, there is no explanation in the Veteran’s VA claims file as to why a VA medical opinion as to the claimed hypertension without the need for a physical examination was obtained, as instructed in the Board Remand. Accordingly, in order to afford the Veteran with the benefit of the doubt, the Veteran’s claim of entitlement to service connection for hypertension must be remanded in order to obtain a VA medical opinion to address outstanding questions of nexus. The matters are REMANDED for the following action: Refer the Veteran’s electronic claims file to an appropriate VA clinician in order to obtain a medical opinion as to the etiology of the Veteran’s diagnosed hypertension. The reviewing physician is advised that “Veterans and Agent Orange: Update 11,” published by NAS in 2018 reclassified the possible association between hypertension and exposure to agent orange from “limited or suggestive” to “sufficient.” Following a review of the claims file and considering the updated NAS finding of “sufficient” evidence of a positive association between hypertension and exposure to herbicides in Vietnam, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is due to his presumed exposure to herbicides during his military service in Thailand. A medical analysis and rationale must be included for all opinions expressed. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.