Citation Nr: 21022777 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-12 508 DATE: April 19, 2021 ORDER Service connection for hypertension, to include as due to service-connected diabetes mellitus is denied. A compensable rating for diabetic retinopathy, to include on an extraschedular basis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that diagnosed hypertension is secondary to service-connected diabetes mellitus or is otherwise related to an in-service injury or disease. 2. During the appeal period, the preponderance of the evidence indicates that Veteran’s diabetic retinopathy did not manifest in visual impairment. 3. The preponderance of the evidence indicates that the Veteran’s diabetic retinopathy does not present an exceptional or unusual disability picture that would make impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension due to service or service-connected disabilities are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a compensable rating for diabetic retinopathy, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.79, Diagnostic Code (DC) 6006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to October 1969, to include a tour of duty in the Republic of Vietnam during the Vietnam War. In November 2010, the Veteran died. The Veteran’s surviving spouse has been properly substituted as the Appellant in this case. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the local RO. A transcript of the hearing is of record. Service Connection Service connection may be granted for a 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 service connection for a 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of that disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents. In the case of such a Veteran, service incurrence for certain presumptive diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of the disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. §§ 3.307(a)(ii). Regardless of the applicability of the presumption, a claimant is not precluded from establishing service connection with proof of direct causation. Proof of direct service connection between exposure and disease requires a showing that exposure during service caused the condition which developed years later. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. In cases of aggravation of a non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. §§ 3.310, 3.322; Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). Hypertension The Appellant claims that the Veteran’s hypertension was related to service. Specifically, the Appellant argues that hypertension was due to service-connected diabetes mellitus. The Appellant has also argued that the hypertension was related to in-service herbicide agent exposure. Service treatment records are silent for complaints, treatment, or diagnoses related to hypertension. Blood pressure readings during service were normal. VA has conceded possible herbicide agent exposure, as the Veteran had service in the Republic of Vietnam. A December 1996 VA examination noted that the Veteran was hypertensive for 15 years, but on no medication. A May 2002 treatment record indicates that the Veteran had been diagnosed with diabetes about 8 months prior. However, the earliest record reflecting an actual diagnosis of diabetes is November 2008, when the Veteran was diagnosed as borderline diabetic. Medical treatment records indicate a long history of substance abuse and non-compliance with hypertension medicine. At an October 2009 VA examination, the Veteran reported a diagnosis of hypertension for about five years. The examiner explicitly found that the hypertension was not a complication of diabetes, nor was it worsened by diabetes, as blood urea nitrogen and creatine were normal. At a September 2010 hearing before the RO, the Veteran’s representative argued that there was evidence that the diabetes preceded hypertension. Specifically, the representative argued that there was evidence of a high glucose level in 1996, while the hypertension was diagnosed in 2004. In a March 2016 VA opinion, the examiner opined that the Veteran’s hypertension was less likely than not related to service, as there was no evidence of hypertension in service. The examiner further opined that the hypertension was less likely than not related to presumed herbicide agent exposure, as not only was hypertension not on the presumptive list of disabilities related to herbicide exposure, but also the examiner did not find any relationship between any possible herbicide agent exposure and the Veteran’s medical history for development of hypertension, specifically given risk factors he had. The examiner explicitly found that numerous other factors predisposed the Veteran to hypertension, including non-compliance with medications, alcohol and drug abuse, hyperlipidemia, smoking and a family history of hypertension. Therefore, the examiner found that the Veteran’s lifestyle risk factors were most likely the cause of hypertension. The March 2016 examiner also opined that the hypertension was not caused by or aggravated by the service-connected diabetes. The examiner explained that an extensive review of the record was performed, and that diabetes did not precede hypertension, therefore could not have caused it. Noting an elevated glucose reading in 1996 that was argued by the Veteran as an indication that diabetes predated hypertension, the examiner explained that medically elevated glucose was not sufficient to qualify as diabetes. The examiner further noted that many years later in November 2008, the Veteran was described as “borderline” diabetic. The examiner stated that this was not the same as a diabetes diagnoses when discussing the effect of one condition or other conditions. Further, the examiner noted that hypertension readings did not increase after the diagnosis of diabetes, indicating that it was not aggravated. Again, the examiner found that the noncompliance with medication and appointments, alcohol and drug use, smoking and risk factors were the cause of hypertension, not diabetes. After review of the record, the Board finds that the preponderance of the evidence is against a finding that service connection for hypertension is warranted. There is no evidence that hypertension developed during service or within one year after service. While VA has conceded exposure to herbicide agents, hypertension does not qualify the Veteran for presumptive service connection on that basis. Regarding direct service connection to herbicide agents in this case, a VA examiner opined that it was less likely than not that the hypertension in this case was related to any herbicide agent exposure. Lastly, the both VA examiners opined that service-connected diabetes did not cause or aggravate diagnosed hypertension. The March 2016 VA examiner did an extensive review of the record and found that while there may have been a record of high blood glucose as early as 1996, this did not qualify as a diagnosis of diabetes that may cause or effect another condition. The examiner found that the Veteran’s long history of other risk factors were most likely the cause of hypertension, and that diabetes was not shown to have aggravated hypertension. The Board acknowledges the argument that the hypertension was related to herbicide agent exposure or service-connected diabetes. However, two VA examiners found otherwise based on review of the record. The Board finds the medical opinions the most probative evidence of record. The Appellant has not provided any objective medical evidence contradicting these findings. Accordingly, the preponderance of the evidence is against a finding that service connection for hypertension is warranted. Therefore, the claim must be denied. Increased Rating Diabetic retinopathy The Appellant contends that the symptoms of the Veteran’s non-proliferative diabetic retinopathy (hereinafter “eye disability”) entitled him to a higher rating. The Veteran’s eye disability was assigned a 0 percent rating under DC 6006, for retinopathy. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. As the appeal period was before the change in criteria, the Board will consider the former criteria only. Under the former criteria, DC 6006 instructed to evaluate pursuant to the General Rating Formula for Diagnostic Codes 6000 through 6009. The General Rating Formula for DCs 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. For VA purposes, an incapacitating episode under the former criteria is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, visual acuity and visual field defects are evaluated separately, and then combined under the provisions of § 4.25. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). DC 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a 0 percent rating is warranted. Where the visual acuity in the poorer eye is 20/50, a 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. At an October 2009 VA examination, the examiner diagnosed mild non-proliferative diabetic retinopathy and a refractive error. On examination, visual acuity was 20/25 in the right eye and 20/30 in the left eye. Confrontation fields were full to finger counting. Slit lamp examination found an elevated mass under the upper lid. Fundus examination found cotton wool spots in the vessels of the right eye, and an area of exudates in the left eye. At a hearing before the RO in September 2010, the Veteran reported that he experiences pain in the eyes weekly. Specifically, the Veteran stated that it felt as if sand was being thrown in the eyes or as the eyes were being poked with a sharp object. For relieve, the Veteran reported placing a wet towel over the eyes. In a statement contemporaneous to the RO hearing, the Appellant stated that the Veteran experienced severe pain in the eyes and placed cold, wet towels on the head and eyes for relief. The Appellant also stated that the Veteran experienced difficulty seeing colors. VA medical records during the appeal period indicate the Veteran periodically had eye examinations to monitor diabetic retinopathy. These records show a history of mild to moderate diabetic retinopathy. Corrected distance vision remained within the normal range during the appeal period. No records indicated complaints of pain in the eyes. In fact, multiple records indicated that the Veteran denied any ocular irritation. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran’s diabetic retinopathy. At the October 2009 VA examination, the examiner noted no symptoms related to the retinopathy. The retinopathy was found to be mild. Visual acuity was normal. While the examiner found an elevated mass under the lid, these were not found to be related to the retinopathy. Cotton wool spots and exudates found in the vessels were not noted to be visually significant. Multiple eye treatment records during the appeal period show mild to moderate diabetic retinopathy, but do not indicate any symptomology related to the retinopathy, nor any visual impairment caused by it. Therefore, no higher rating is warranted based on visual impairment. The Board acknowledges the Veteran’s September 2010 testimony before the RO, and the Appellant’s contemporaneous statement, describing irritation in the eyes and the need to use wet towels for relief. While the Board is sympathetic to the Veteran’s claims that the eye irritation was due to retinopathy, there is no objective medical evidence showing that the irritation described by the Veteran was related to the service-connected disability. While the Veteran reported eye pain at the hearing, that is notably not corroborated by the VA medical records. Indeed, the VA medical records actually contradict the testimony. The Board further acknowledges the argument that these episodes constitute incapacitating episodes under the rating criteria. However, even if the service-connected retinopathy caused the described discomfort requiring the Veteran to lay down with a wet towel over the eyes, this does not fall under the definition of “incapacitating episode” under the regulations, as there is no indication that the bedrest and treatment was prescribed by a physician. Accordingly, the preponderance of the evidence is against a finding that a compensable rating is warranted on a schedular basis for the Veteran’s service-connected eye disability. Regarding the assignment of a higher rating based on an extraschedular basis, the Board remanded the claim in December 2017 for consideration of an extraschedular rating. In exceptional cases where the criteria in VA’s Rating Schedule criteria are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as governing norms. Third, if the rating schedule is inadequate to rate a veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service (Director) to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). When the Board finds that an extraschedular rating may be warranted, the Board cannot assign an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423 (2009). Rather, the Board must remand the claim to the Agency of Original Jurisdiction for referral to the Director. Thun v. Peake, 22 Vet. App. 111 (2008). The Board referred the claim to the Director in December 2017. In June 2020, the extraschedular issue was referred to the Director for consideration. In an August 2020 decision, the Director found that entitlement to an extraschedular rating for diabetic retinopathy was not warranted. The Director noted that the Veteran worked part time until he lost his job due to having to take seizure medications, with the seizures starting in 1998. The Veteran did not work for many years preceding the claim. The Director also noted a March 2016 VA examiner’s questioning of the Veteran’s activities, such as mowing lawns, with “his vision as impaired as he indicated…” and the Veteran’s history of non-compliance with medication. Based on the evidence of record, therefore, the Director found that there was no impairment of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent hospitalizations. The Director further found that given the Veteran having not worked in many years, it would be speculative or hypothetical to make such a finding. The Board finds that the Director’s opinion contains a statement of reasons or bases and is supported by the overall evidence. Kuppamala v. McDonald, 24 Vet. App. 447 (2016). The Director cited to the relevant regulatory provisions and explained the rationale for concluding that an extraschedular rating was not warranted. Therefore, that decision is reviewable by the Board de novo. As part of the evaluation for an extraschedular rating, the Board has considered that the resolution of reasonable doubt applies to determinations of whether a symptom should be attributed to a service-connected disability. The Board has attributed all potentially service-connected symptoms to the Veteran’s service-connected hypersomnia disability in considering if the Veteran is entitled to an extraschedular rating. Mittleider v. West, 11 Vet. App. 181 (1998). The Board finds that the evidence in this case does not show such an exceptional disability picture that the available schedular ratings for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran’s eye disability with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology. The Veteran had no decrease in visual acuity or impairment of visual field. Further, as discussed above, the service-connected eye disability did not cause incapacitating episodes. The Veteran described experiencing additional symptoms in the form of pain in the eyes as if someone was throwing sand in them or poking them with a sharp object. However, there is no evidence of record connecting these symptoms to the service-connected disability. In multiple VA treatment records specifically for diabetic retinopathy, no mention was made of any discomfort or pain. In fact, the Veteran denied ocular irritation at these appointments. The Veteran stated that a physician instructed him not to drive at night or operate heavy machinery. The Appellant also described having to help the Veteran with activities of daily living. However, the treatment records show a long history of seizure disorder with subsequent strokes, impacting the Veteran’s cognitive and physical function. Treatment records indicate that the Appellant assisted the Veteran with activities of daily living specifically when discussing the effects of stroke and seizure disorder. There is no indication that the Veteran’s service-connected eye disability caused the impairment requiring assistance, or that the restriction for use of machinery or driving was due to the eye disability. The Board finds that the preponderance of the evidence is against a finding that the service-connected disability causes marked interference with employment. While the Veteran was unemployed during the appeal period, the evidence does not show that eye disability caused marked interference with employment as the record indicates that non service-connected seizure disorders caused him to stop working. The evidence also did not show frequent hospitalization due to the service-connected disability. Finally, the Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In this case, however, there are no additional service-connected disabilities or symptoms that have not been attributed to a specific service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, the Board finds that this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Therefore, the Board finds that the evidence is against a finding that the Veteran’s diabetic retinopathy disability causes average impairment of earning capacity beyond the ratings currently in effect, and an extraschedular rating for diabetic retinopathy is not warranted. 38 C.F.R. § 3.321(b)(1). The Board finds that the preponderance of the evidence is against the claim of entitlement to an increased rating for the service-connected diabetic retinopathy disability, to include on an extraschedular basis, and that claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.