Citation Nr: 21026130
Decision Date: 04/29/21	Archive Date: 04/29/21

DOCKET NO. 18-02 775
DATE: April 29, 2021

ORDER

The application to reopen the previously denied claim for service connection for prostate disorder, diagnosed as chronic prostatitis and benign prostate hypertrophy (BPH) is granted.

The application to reopen the previously denied claim for service connection for diabetic glaucoma is granted.

The application to reopen the previously denied claim for service connection for blindness is granted.

The application to reopen the previously denied claim for service connection for diabetic retinopathy is dismissed.

Entitlement to an effective date prior to June 19, 2012 for the grant of service connection for type II diabetes mellitus with diabetic retinopathy and cataracts is denied.

Entitlement to an effective date prior to June 19, 2012 for the grant of service connection for cataracts is denied.

Entitlement to an effective date prior to June 19, 2014 for the grant of service connection for tinnitus is denied.

Entitlement to a disability rating in excess of 10 percent for type II diabetes mellitus with diabetic retinopathy and cataracts is denied.

Entitlement to a disability rating in excess of 10 percent for tinnitus is denied.

Entitlement to a disability rating in excess of 50 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as posttraumatic stress disorder (PTSD)) prior to October 1, 2014 is denied.

Entitlement to a disability rating in excess of 70 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) from October 1, 2014; is denied.

Entitlement to service connection for residuals of stomach cancer (gastric cancer status post partial gastrectomy) is denied.

Entitlement to service connection for an acquired psychiatric disability, to include insomnia is denied.

Entitlement to service connection for high cholesterol is denied.

Entitlement to service connection for prostate disorder, diagnosed as chronic prostatitis and BPH is denied.

Remanded

Entitlement to service connection for hypertension associated with type II diabetes with diabetic retinopathy and cataracts or other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD; is remanded.

Entitlement to service connection for glaucoma is remanded.

Entitlement to service connection for blindness is remanded.

Entitlement to a separate compensable disability rating for cataracts (currently rated as a noncompensable disability associated with type II diabetes mellitus with diabetic retinopathy and cataracts); is remanded.

Entitlement to a separate compensable disability rating for diabetic retinopathy (currently rated as noncompensable disability associated with type II diabetes mellitus with diabetic retinopathy and cataracts); is remanded.

FINDINGS OF FACT

1. In an August 2008 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for a chronic prostate condition.  The Veteran did perfect his appeal to the Board and the Veteran’s claim was denied by the Board in August 2014.  The Veteran did not appeal the Board’s August 2014 decision and the decision was final.

2. Evidence received since the August 2014 Board decision that denied the Veteran’s claim for entitlement to service connection for a chronic prostate condition is new and relates to an unestablished fact necessary to substantiate the claim.

3. In a June 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for diabetic glaucoma.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

4. Evidence received since the June 2013 rating decision that denied the Veteran’s claim for entitlement to service connection for diabetic glaucoma is new and relates to an unestablished fact necessary to substantiate the claim.

5. In a June 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for blindness.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

6. Evidence received since the June 2013 rating decision that denied the Veteran’s claim for entitlement to service connection for blindness is new and relates to an unestablished fact necessary to substantiate the claim.

7. On November 18, 2020, prior to the promulgation of a decision in the appeal, the RO granted the Veteran’s claim for entitlement to service connection for diabetic retinopathy.

8. The Veteran’s initial claim for entitlement to service connection for type II diabetes mellitus was received by VA on June 19, 2012.

9. The Veteran had no communication with VA prior to June 19, 2012 for the issue of entitlement to service connection for type II diabetes mellitus that could be reasonably construed as a claim of entitlement to benefits.

10. The Veteran had no communication with VA prior to June 19, 2012 for the issue of entitlement to service connection for cataracts that could be reasonably construed as a claim for entitlement to benefits.

11. The Veteran’s initial claim for entitlement to service connection for tinnitus was received by VA on June 19, 2014.

12. The Veteran had no communication with VA prior to June 19, 2014 for the issue of entitlement to service connection for tinnitus that could be reasonably construed as a claim of entitlement to benefits.

13. The Veteran’s diabetes mellitus was manageable by restricted diet only during the period on appeal. 

14. Throughout the period on appeal, the Veteran’s tinnitus has been rated at 10 percent disabling (the maximum schedular rating for tinnitus); factors warranting extraschedular rating are not shown.

15. The severity, frequency, and duration of the Veteran’s symptoms due to other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) did not more closely approximate occupational and social impairment with deficiencies in most areas prior to October 1, 2014.

16. The severity, frequency, and duration of the Veteran’s symptoms due to other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) did not more closely approximate total occupational and social impairment from October 1, 2014.

17. The Veteran’s residuals of stomach cancer (gastric cancer status post partial gastrectomy) is not secondary to his service-connected type II diabetes mellitus and is not otherwise related to an in-service injury or disease including but not limited to herbicide agent exposure.

18. The Veteran is evaluated for chronic sleep impairment under his service-connected other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD).

19. The record of evidence shows that the Veteran has high cholesterol; this is considered a laboratory finding and not a disability for VA purposes.

20. The Veteran’s prostate disorder, diagnosed as chronic prostatitis and BPH, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease, to include but not limited to herbicide agent exposure.

CONCLUSIONS OF LAW

1. The criteria to reopen the Veteran’s claim for entitlement to service connection for prostate disorder, diagnosed as chronic prostatitis and BPH has been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

2. The criteria to reopen the Veteran’s claim for entitlement to service connection for diabetic glaucoma has been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

3. The criteria to reopen the Veteran’s claim for entitlement to service connection for blindness has been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

4. The criteria for dismissal of the claim for entitlement to service connection for diabetic retinopathy have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

5. The criteria for an effective date prior to June 19, 2012 for entitlement to service connection for type II diabetes mellitus have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

6. The criteria for an effective date prior to June 19, 2012 for entitlement to service connection for cataracts have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

7. The criteria for an effective date prior to June 19, 2014 for entitlement to service connection for tinnitus have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

8. The criteria for a disability rating in excess of 10 percent for diabetes mellitus have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

9. The criteria for a disability rating in excess of 10 percent for tinnitus have not been met.  38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b), 4.1, 4.87, Diagnostic Code 6260; Smith v. Nicholson, 19 Vet. App. 63 (2005) rev’d, 451 F.3d 1344 (Fed. Cir. 2006).

10. The criteria for a disability rating in excess of 50 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) prior to October 1, 2014; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9499, Diagnostic Code 9413.

11. The criteria for a disability rating in excess of 70 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) from October 1, 2014; have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9499, Diagnostic Code 9413.

12. The criteria for service connection for residuals of stomach cancer (gastric cancer status post partial gastrectomy) due to service or associated with his service-connected type II diabetes mellitus; are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

13. The criteria for entitlement to service connection for an acquired psychiatric disability, to include insomnia have not been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

14. The criteria for entitlement to service connection for high cholesterol have not been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304.

15. The criteria for service connection for prostate disorder, diagnosed as chronic prostatitis and BPH are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309(e).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1966 until his honorable discharge in October 1969.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from the October 2014, October 2015, and December 2017 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In May 2019, the Board remanded the case to the RO for further development.  Specifically, the Board directed the RO to obtain VA treatment records from March 2018 to present; obtain records from social security administration; obtain an addendum opinion from Dr. H. Skaggs, M.D.; VA audiological examination; an addendum opinion regarding the nature and etiology of the Veteran’s hypertension; VA examination to determine the severity of the Veteran’s type II diabetes mellitus; VA examination to determine the severity of the Veteran’s cataracts and the nature and etiology of the Veteran’s glaucoma, diabetic retinopathy, and blindness condition(s); and VA examination for the Veteran’s other specified trauma and stressor related disorder (to include alcohol use disorder).

The Board notes that the Veteran has been granted total disability rating based on individual unemployability (TDIU) since October 1, 2014.

The Board also notes that in January 2021, the Board received notification that the Veteran’s attorney requested to withdrew from representation under 38 C.F.R. § 20.608.  See January 21, 2021 correspondence (faxed on January 26, 2021 and received via mail on February 10, 2021).

New and Material Evidence

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

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 C.F.R. § 3.156.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18.

1. New and material evidence to reopen the claim of service connection for prostate disorder, diagnosed as chronic prostatitis and BPH

The Veteran applied for service connection for a prostate disability in July 2007.  This claim was denied in the August 2008 rating decision because the evidence did not show a chronic disabling prostate condition existed.  In November 2008 and February 2009, the Veteran timely filed a written notice of disagreement asserting that he believed that the disability was related to his military service and that the VA failed to get the necessary medical records from his private medical provider(s).  See November 18, 2008 Statement in Support of Claim (VA Form 21-4138); see February 8, 2009 Statement in Support of Claim (VA Form 21-4138).  In December 2009, the RO issued a Statement of the Case (SOC) affirming the August 2008 rating decision.  In February 2010, the Veteran perfected his appeal to the Board.  See February 2010 Appeal to Board of Veterans’ Appeals (VA Form 9).  In August 2012, the Board remanded the Veteran’s prostate claim for a review of the Veteran’s service treatment records (STRs).  In January 2013, the RO issued a Supplemental Statement of the Case (SSOC) affirming the August 2008 rating decision.  In August 2014, the Board denied the Veteran’s claim for a prostate disability because prostatitis has not been shown at any point during the appeal and BPH was not shown in service or for many years thereafter, and is unrelated to active duty service.  The Veteran did not appeal this claim, and the August 2014 Board decision is final.

The Veteran applied for service connection for prostate conditions in June 2015 and September 2015.  This claim was denied in the October 2015 rating decision because the Veteran did not submit new and material evidence.  In November 2015, the Veteran timely filed a notice of disagreement appealing the October 2015 rating decision.  See November 2015 Notice of Disagreement (VA Form 21-0958).  In December 2017, the RO issued a SOC affirming the October 2015 rating decision.  In April 2018, the RO issued a SSOC affirming the October 2015 rating decision.  In January 2018, the Veteran perfected his appeal to the Board.  See January 2018 Appeal to Board of Veterans’ Appeals (VA Form 9).

Evidence submitted since the August 2014 final decision includes November 18, 2008 Statement in Support of Claim (VA Form 21-4138) [first notice of disagreement that was invalid]; February 8, 2009 Statement in Support of Claim (VA Form 21-4138) [second notice of disagreement, that was valid]; February 3, 2010 Appeal to Board of Veterans’ Appeals (VA Form 9) with attached correspondence; a second February 3, 2010 Appeal to Board of Veterans’ Appeals (VA Form 9); October 2011 Statement of Accredited Representative (VA Form 646); February 2012 Informal Hearing Presentation; February 2013 Informal Hearing Presentation; Atlanta VAMC treatment records for the periods of July 3, 2007 through July 8, 2013, May 19, 2015 through August 26, 2015, December 16, 2017 through March 27, 2018, July 17, 2019 through August 30, 2019, October 8, 2019 through October 22, 2019, November 1, 2019 through November 8, 2019, December 6, 2019 through May 21, 2020, July 27, 2020 through October 24, 2020; September 2012 VA examination; private treatment records from August 1991 through June 2005 and January 2000 through October 2010; notification that the Veteran’s records from Atlanta Center for Medicine are no longer available; June 2013 VA examination; July 2014 Informal Hearing Presentation; private treatment records from October 2004 through July 2014; July 2014 VA examination; June 23, 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); September 28, 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); September 2015 VA examination; November 29, 2015 Notice of Disagreement (VA Form 21-0958); September 2018 private provider opinion.

The Board finds that the Veteran submitted new and material evidence for the prostate disability.  Specifically, the September 2018 private provider opinion.  As this new evidence tends to show a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, the Board will reopen this claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).  To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below.

2. New and material evidence to reopen the claim of service connection for diabetic glaucoma

3. New and material evidence to reopen the claim of service connection for blindness

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran applied for service connection for diabetic glaucoma in March 2012.  This claim was denied in the June 2013 rating decision because the disability neither occurred in nor was caused by service.  The Veteran did not appeal this claim and it became final in June 2014.

The Veteran applied for service connection for blindness in June 2012.  This claim was denied in the June 2013 rating decision because the disability neither occurred in nor was caused by service.  The Veteran did not appeal this claim, and it became final in June 2014.

The Veteran requested reconsideration of the June 2013 rating decision for service connection for glaucoma and blindness in July 2013.  In October 2014, the RO reconsidered the Veteran’s claims for glaucoma and blindness and confirmed and continued the June 2013 rating decisions because the evidence does not show any link between the Veteran’s diagnosed disabilities and his military service.  The Veteran timely filed a notice of disagreement (VA Form 21-0958) to the October 2014 rating decision in September 2015 and perfected his appeal in January 2018.  See January 2018 Appeal to Board of Veterans’ Appeals (VA Form 9).

Evidence submitted since the June 2013 final decision includes Atlanta VAMC treatment records from July 3, 2007 through April 15, 2014 and May 19, 2015 through August 26, 2015; July 2013 Statement in Support of Claim (VA Form 21-4138) requesting reconsideration of the June 2013 rating decision; September 2014 VA examination; June 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); September 2015 Notice of Disagreement (VA Form 21-0958); September 2015 VA examination; January 2018 Appeal to Board of Veterans’ Appeals (VA Form 9); October 2019 VA examination; November 2020 addendum opinion to the October 2019 VA examination.

The Board finds that the Veteran submitted new and material evidence for the glaucoma and blindness disabilities.  Specifically, the VA examinations from September 2015, October 2019, and the November 2020 addendum opinion.  As this new evidence tends to show a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, the Board will reopen this claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).  To this extent, the Veteran’s claim is granted and entitlement to service connection is addressed below.

4. New and material evidence to reopen the claim of service connection for diabetic retinopathy

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  

In the present case, the RO granted the Veteran’s claim for entitlement to service connection for diabetic retinopathy in the November 2020 rating decision.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

Effective Date

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.”  Thus, “the plain language of [section] 5110(b)(2)…only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim.”

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

5. Entitlement to an effective date prior to June 19, 2012 for the grant of service connection for type II diabetes mellitus

6. Entitlement to an effective date prior to June 19, 2012 for the grant of service connection for cataracts

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to an effective date prior to June 19, 2012 for entitlement to service connection for type II diabetes mellitus with cataracts.  However, it is unclear as to the basis for the Veteran’s assertion.

The question for the Board is whether VA received an informal or formal claim for compensation for this disability prior to June 19, 2012.

The Board concludes that, although the Veteran had a type II diabetes mellitus and cataracts prior to June 19, 2012, VA did not receive a claim for compensation prior to June 19, 2012 and that the effective date of the award for compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). 

In this case, VA received an original claim of entitlement to service connection for diabetes on June 19, 2012, Veteran’s Supplemental Claim (VA Form 21-526b) (June 19, 2012).  The RO subsequently granted that claim with an effective date of the claim’s receipt by VA, June 19, 2012.

However, as noted above, prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r).  As noted above, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than June 19, 2012, for the grant of service connection for type II diabetes mellitus with cataracts.  There is no communication prior to June 19, 2012, that could be reasonably construed as a claim of entitlement to benefits.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  Although the Board accepts that the Veteran had the disability prior to the date of receipt of his application for VA compensation in June 2012, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Therefore, the effective date for the grant of an increased disability rating is appropriately June 19, 2012, for the Veteran’s type II diabetes mellitus with cataracts, and no earlier. 

Accordingly, the claim for an earlier effective date is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).

7. Entitlement to an effective date prior to June 19, 2014 for the grant of service connection for tinnitus

The Veteran asserts that he is entitled to an effective date prior to June 19, 2014 for entitlement to service connection for tinnitus.  However, it is unclear as to the basis of the Veteran’s assertion.

The question for the Board is whether VA received an informal or formal claim for compensation for this disability prior to June 19, 2014.

The Board concludes that, although the Veteran had tinnitus prior to June 19, 2014, VA did not receive a claim for compensation prior to June 19, 2014 and that the effective date of the award for compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). 

In this case, VA received an original claim of entitlement to service connection for tinnitus on June 19, 2014, Report of General Information (June 19, 2014) of a verbal request by telephone to establish a claim.  Although the Veteran did not file the informal claim in writing in accordance with 38 U.S.C. § 101(30) and 38 C.F.R. § 3.1(p), the RO subsequently granted that claim with an effective date of the claim’s receipt by VA, June 19, 2014.

However, as noted above, prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r).  As noted above, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than June 19, 2014, for the grant of service connection for tinnitus.  There is no communication prior to June 19, 2014, that could be reasonably construed as a claim of entitlement to benefits.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  Although the Board accepts that the Veteran had the disability prior to the date of receipt of his application for VA compensation in June 2012, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Therefore, the effective date for the grant of an increased disability rating is appropriately June 19, 2014, for the Veteran’s tinnitus, and no earlier. 

Accordingly, the claim for an earlier effective date is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

8. Entitlement to a disability rating in excess of 10 percent for type II diabetes mellitus with diabetic retinopathy and cataracts

The Veteran asserts that he is entitled to a higher disability rating for his service-connected type II diabetes mellitus.  However, it is unclear as to the basis for the Veteran’s assertion.

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’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injection of insulin and restricted diet, or; an oral hypoglycemic agent and restricted diet.

The Board finds that the Veteran’s diabetes mellitus has been manageable by restricted diet only during the period on appeal.  Throughout the period on appeal, the Veteran’s type II diabetes mellitus has been managed by a restricted diet without the use of insulin nor oral medication(s).  The Veteran is competent to report that he is not treated with insulin or oral medication(s), and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran does not assert, and medical treatment records do not show, that insulin injections or oral hypoglycemic agents were prescribed during the period on appeal.

The record reflects that the Veteran does have complications of diabetes.  Specifically, the Veteran is diagnosed with diabetic retinopathy, diabetic-related cataracts, and peripheral neuropathy of the bilateral lower extremities.  All of which, the Veteran is service connected for.

The Board notes that it appears that the Veteran believes that his glaucoma and blindness are also due to his service-connected type II diabetes mellitus.  Those issues will be addressed later in this decision.

Accordingly, the preponderance of the evidence is against assigning a rating in excess of 10 percent during the period on appeal.

9. Entitlement to a disability rating in excess of 10 percent for tinnitus

The Veteran asserts that he is entitled to a higher disability rating for his service-connected tinnitus.

Recurrent tinnitus is evaluated under Diagnostic Code 6260, which provides for a maximum disability rating of 10 percent.  Diagnostic Code 6260, which was revised effective June 13, 2013 to clarify existing VA practice, also provides that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2.

In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) affirmed VA’s longstanding interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent disability rating for tinnitus, whether perceived as unilateral or bilateral.  Citing United States Supreme Court precedent, the Federal Circuit explained that an agency’s interpretation of its own regulations was entitled to substantial deference by the courts as long as the interpretation was not plainly erroneous or inconsistent with the regulations.  Smith, 451 F.3d at 1350-51.  Finding that there was a lack of evidence in the record suggesting that VA’s interpretation of Diagnostic Code 6260 was plainly erroneous or inconsistent with the regulations, the Federal Circuit concluded that VA’s interpretation of a single 10 percent disability rating being the maximum available for tinnitus was reasonable.

The Veteran was afforded an audiological VA examination in October 2014.  During the October 2014 VA examination, the Veteran reported constant, bilateral tinnitus (ringing and crickets) that had been present for many years but was unsure of its onset.  The Veteran reported that his tinnitus impacts his ability to concentrate.  The RO obtained an addendum opinion to the October 2014 VA examination in November 2017.  The November 2017 VA examiner provided a positive nexus opinion for service connection.

The Veteran was afforded a second audiological examination in September 2019.  Unlike during the October 2014 VA examination, during the September 2019 VA examination, the Veteran reported onset of tinnitus in 1975 (six years after separation from service) and reported constant bilateral tinnitus.

The Veteran’s tinnitus has been assigned the maximum schedular disability rating available for tinnitus under 38 C.F.R. § 4.87, Diagnostic Code 6260, and a higher schedular rating or separate 10 percent disability rating for tinnitus of each ear are not warranted.

The Board has considered whether referral of the Veteran’s claim for consideration of an extraschedular disability rating is warranted.  See 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular disability rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology and is, thus, found inadequate, the Board must determine whether the disability picture exhibits other related factors such as those provided by the regulation as “governing norms.”  Third, if the disability rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to [the Director of the Compensation Service] to determine whether an extraschedular disability rating is warranted.

The Board finds that the first prong of the Thun analysis is not satisfied.  The Veteran’s tinnitus is not shown (or alleged) to have manifestations or to cause impairment not encompassed by the schedular criteria.  His reports of ringing in the ears are the basis for a 10 percent disability rating for tinnitus.  He has not identified factors warranting referral for extraschedular consideration, such as marked interference with employment.  Furthermore, there is nothing exceptional or unusual about his tinnitus (masking is a commonly known ameliorative measure).  See Long v. Wilkie, No. 16-1537 (Vet. App. December 30, 2020).  Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not necessary.

10. Entitlement to a disability rating in excess of 50 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) prior to October 1, 2014

11. Entitlement to a disability rating in excess of 70 percent for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) from October 1, 2014

The Veteran asserts that entitled to a higher disability rating for his service-connected other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD).  However, it is unclear as to the basis for the Veteran’s assertions.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130.  The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages.  Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation).

A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name.

Prior to October 1, 2014

The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher.

The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher.  The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating.

VA treatment records, the November 2010 VA examination, and the Veteran’s lay statements show that the Veteran’s other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) was manifested by symptoms associated with a 30 percent disability rating (depressed mood, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events).  He also had symptoms that are not listed with a specific rating, such as low frustration tolerance. 

The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 or 70 percent disability rating.  See 38 C.F.R. § 4.126.  The Veteran reported that these symptoms were continuous and ongoing.  Further, low frustration tolerance is similar to difficulty in establishing and maintaining effective work and social relationships, which is contemplated by the assigned 50 percent disability rating.

The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with no more than a 50 percent disability rating.  The November 2010 VA examiner found that the Veteran’s psychiatric impairment produced symptoms which were not severe enough to interfere with social and occupational functioning or to require continuous medication.  Mental status examinations in VA treatment records and the November 2010 VA examination indicate that the Veteran had no suicidal or homicidal ideations.  During the November 2010 VA examination, the Veteran reported that that his symptoms began in 1970 as a result of not being able to find a job and described symptoms of insomnia, low frustration tolerance and some memory problems. 

The evidence overall does not demonstrate the level of impairment associated with a 70 percent disability rating.  As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent disability rating or lower.

From October 1, 2014

The Veteran asserts that he is entitled to a disability rating in excess of 70 percent.

The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent.

The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent.  The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent disability rating (or less), and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent disability rating (or less).

The Board notes that the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by a private provider in December 2018 after a telephone interview and record review.  Although the Board finds that telephone interviews are adequate, the results of the DBQ do not appear consistent with the evidence of record.  For example, the private provider indicated that the Veteran’s symptoms include impaired impulse control, such as unprovoked irritability with periods of violence.  In contrast, the evidence of record reflects that the Veteran has a short temper, he will cuss and scream over nothing, and he gets angry over the littlest things.  See Statement from the Veteran’s spouse.  There is no evidence of periods of violence (by the Veteran) within the record, including within the private provider opinion and DBQ.  Furthermore, the December 2018 private provider noted that the Veteran reported that he only leaves home for doctor appointments and absolute necessities.  This is in contrast to the statements by the Veteran’s spouse and son that reflected that “…if he goes, he is ready to leave within 30 minutes.”  Furthermore, the statement from his spouse indicates that “[w]hen he is depressed, he won’t leave the house.”  This indicates that there are periods that he does leave the house.  Therefore, the Board finds the December 2018 private provider DBQ and opinion to be inadequate because it is inconsistent with the evidence of record.  The Board notes that despite the apparent deficiencies within the private provider report, including symptoms that are not supported, the private provider found that the Veteran’s level of impairment was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood and did not rise to the level of total occupational and social impairment.  As will be noted below, the VA examinations which are more consistent with the statements by the Veteran along with the buddy statements provide for a lower evaluation level.

VA treatment records, the October 2014 VA examination, the October 2015 VA examination, the December 2018 private provider DBQ, and the Veteran’s lay statements show that the Veteran’s other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) was manifested by symptoms associated with a 30 percent disability rating (depressed mood, anxiety, chronic sleep impairment, [suspiciousness, and mild memory loss (such as forgetting names, directions, or recent events) by the December 2018 private provider]; a 50 percent disability rating (disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships; [flattened affect; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking by the December 2018 private provider); symptoms associated with a 70 percent disability rating (difficulty in adapting to stressful circumstances (including work or a worklike setting); [obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; and inability to establish and maintain effective relationships by the December 2018 private provider]); and symptoms associated with a 100 percent disability rating (intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene by the December 2018 private provider).

The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating (or less), which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating.  See 38 C.F.R. § 4.126.  The Veteran reported that these symptoms were not present daily, but would increase in severity.

The Board notes that the October 2014 VA examiner found that the Veteran’s other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) produced occupational and social impairment with reduced reliability and productivity.  The October 2014 VA examiner also noted that the Veteran’s great grandchildren that do not live with the Veteran visit often and he stays in touch with his 3 living siblings and has a few friends that he does not see often.

Furthermore, the Board notes that the October 2015 VA examiner found that the Veteran’s other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) produced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms are controlled by medication.  The October 2015 VA examiner noted that the Veteran sees his 3 living siblings annually, gets along well with his adult son and he sees his grandchildren and great grandchildren frequently and gets along well with everyone.

In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating.  The criteria for a 100 percent or higher rating are not met and the appeal must be denied.

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(a).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015).  Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(a)(6)(iii).  The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases.  38 U.S.C. § 101(29)(A).  Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.”  38 C.F.R. § 3.307(a)(6)(iii).  VA has interpreted this regulation to require “the service member’s presence at some point on the landmass or the inland waters of Vietnam” for entitlement to a presumption of exposure to Agent Orange.  Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009).  Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held in 2019 that service in the Republic of Vietnam includes service in the territorial seas of the Republic of Vietnam.  See Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019).  The holding in Procopio was further codified in the Blue Water Navy Act of 2019.  38 U.S.C. § 1116A(c).  Service on a U.S. Navy vessel may qualify as duty or visitation in Vietnam, as long as the veteran set foot on land or the vessel nevertheless was in the inland waterways or territorial waters of the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii); Haas, 525 F.3d at 1195, 1197; Gray v. McDonald, 27 Vet. App. 313 (2015); Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019). 

For veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e).

If a veteran was exposed to an herbicide agent during active military, naval, or air service, service connection is presumed for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; Ischemic heart disease (including but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery); and stable, unstable and Prinzmetal’s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; Parkinsonism; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); bladder cancer; and hypothyroidism.  38 C.F.R. § 3.309(e). 

A presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for: hepatobiliary cancers; nasal and/or nasopharyngeal cancer; bone and joint cancer; breast cancer; female reproductive cancers; renal cancer; testicular cancer; abnormal sperm parameters and infertility; Amyotrophic Lateral Sclerosis (ALS); chronic persistent peripheral neuropathy; lipid and lipoprotein disorders; gastrointestinal and digestive disease including liver toxicity; immune system disorders; circulatory disorders; respiratory disorders (other than certain respiratory cancers); skin cancer; cognitive and neuropsychiatric effects; gastrointestinal tract tumors; brain tumors; endometriosis; and, any other condition for which VA has not specifically determined a presumption of service connection is warranted.

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  38 C.F.R. § 3.310(a).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995).

Additionally, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. § 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

12. Entitlement to service connection for residuals of stomach cancer (gastric cancer status post partial gastrectomy)

The Veteran asserts that his stomach cancer is caused by herbicide agent exposure.  Alternatively, the Veteran asserts that his stomach cancer is associated with his service-connected type II diabetes mellitus.

First, the Board finds that there is evidence of a current disability.  See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran was diagnosed with gastric cancer status post partial gastrectomy in 2006.

Second, the Board finds that there is evidence of a service-connected disability.  See Wallin, 11 Vet. App. 509, 512 (1998); see also Allen, supra.  The Veteran is service-connected for type II diabetes mellitus.

Third, the Board finds that there is not medical nexus evidence establishing a connection between the Veteran’s service-connected disability of type II diabetes mellitus and the current disability.  The Veteran was afforded a VA examination in August 2020.  The August 2020 VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran’s gastric cancer status post partial gastrectomy is proximately due to or the result of the Veteran’s service-connected type II diabetes mellitus because medical literature does not reveal any etiological or causative relationship between type II diabetes mellitus and gastric cancer.  Furthermore, the August 2020 VA examiner noted that there is also no evidence that type II diabetes mellitus aggravates gastric cancer.  Accordingly, entitlement to service connection on a secondary basis for gastric cancer status post partial gastrectomy is denied.

As to direct service connection under 38 C.F.R. § 3.303, as noted above, the Veteran was diagnosed with gastric cancer status post partial gastrectomy in 2006.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).

Second, the Board finds that there was an in-service event, injury or disease.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Board concedes that the Veteran has presumed herbicide agent exposure.

Third, the Board finds that the evidence of record does not support a finding that the Veteran’s gastric cancer is related to active service.  The Veteran was afforded a VA examination in August 2020.  The August 2020 VA examiner noted that the Veteran’s Service Treatment Records (STRs) do not reveal any evidence of symptoms, diagnosis, or treatment of gastric cancer while he was on active duty or within one year of separation from service and that the Veteran was diagnosed with gastric cancer in 2006, over 35 years after separation from service.  Furthermore, the August 2020 VA examiner explained that there is some evidence that occupations in coal mining, tin mining, metal processing (particularly steel and iron), rubber manufacturing industries lead to an increased risk of gastric cancer; but noted that the data is not up to date.  Furthermore, the August 2020 VA examiner concluded that the Veteran’s gastric cancer is less likely than not (less than 50 percent probability) associated with the Veteran’s herbicide agent exposure because medical literature does not indicate an association between gastric cancer and herbicide agent exposure.  Accordingly, entitlement to service connection on a direct basis for gastric cancer status post partial gastrectomy is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

13. Entitlement to service connection for an acquired psychiatric disability, to include insomnia

The Veteran asserts that he is entitled to service connection for insomnia.

As noted above, disabilities, including those arising from a single disease entity, are generally rated separately before ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, VA is prohibited from pyramiding (rating the same disability, or the same manifestation of a disability, under different diagnostic codes).  38 C.F.R. § 4.14.  When disabilities have duplicative or overlapping symptoms, the rule against pyramiding prohibits VA from compensating the Veteran more than once for the same symptom or impairment.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Furthermore, as addressed above under the increased rating claims for the Veteran’s service-connected other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD), the Veteran is already evaluated for chronic sleep impairment and therefore any additional disability for insomnia would violate the rule against pyramiding.  38 C.F.R. §§ 4.14, 4.25; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

14. Entitlement to service connection for high cholesterol

The Veteran asserts that he is entitled to service connection for high cholesterol.

The Board finds that the preponderance of evidence is against granting the Veteran’s claim for entitlement to service connection for high cholesterol.  The Veteran essentially asserts that he experiences high cholesterol, which is related to his active military service.  The record of evidence does not support these assertions.  It shows instead that, although the Veteran’s laboratory results indicated that he has high cholesterol, this is a laboratory finding, and is not considered a disability for VA adjudication purposes.  

The Board notes that hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc.”  See DORLAND’s ILLUSTRATED MEDICAL DISCTIONARY 852 (29th ed. 2000).  Furthermore, the Board notes that hyperlipidemia or high cholesterol is a laboratory finding and is not a disability for which VA compensation is available.  See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (finding laboratory results of hyperlipidemia or high cholesterol are not disabilities subject to VA rating schedule).  The Court has held that the term “disability” refers to impairment of earning capacity.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The record of evidence does not suggest that the Veteran’s high cholesterol causes any impairment of earning capacity.  The Board acknowledges that, although high cholesterol may be evidence of underling disability or subsequently may cause disability, service connection may not be granted for a laboratory finding of high cholesterol alone.

A service connected claim must be accompanied by evidence which establishes that the Veteran currently has a disability.  Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection is not warranted in the absence of proof of a current disability.  The Board has considered whether the Veteran experienced a disability as a result of his acknowledged high cholesterol at any time during the pendency of this appeal.  Service connection may be granted if there is a disability at some point during the claim, even if it later resolves or becomes asymptomatic.  McClaim v. Nicholson, 21 Vet. App. 319 (2007).  There is no evidence other than the Veteran’s unsupported lay assertions that he experiences a current disability as a result of his high cholesterol which could be attributed to his active service.  The medical records reflect that there is no disability related to his high cholesterol, and those records are more probative than the Veteran’s lay assertions.  Thus, the Board finds that service connection for high cholesterol is not warranted.

15. Entitlement to service connection for prostate disorder, diagnosed as chronic prostatitis and BPH

The Veteran asserts that his prostate disorder, diagnosed as chronic prostatitis and BPH is related to in-service herbicide agent exposure.

The Board notes that the Veteran has a prostate disorder diagnosed as chronic prostatitis and BPH and herbicide agent exposure has been conceded.  Therefore, the question for the Board is if the Veteran’s prostate disorder, diagnosed as chronic prostatitis and BPH is due to his herbicide agent exposure.

The Board finds that the evidence of record does not support a finding that the Veteran’s prostate disorder, diagnosed as chronic prostatitis and BPH is related to active service.  The Board acknowledges that the presumption for service connection due to herbicide agent exposure includes prostate cancer.  However, the record does not contain a diagnosis nor symptoms of prostate cancer.  In contrast, the Veteran is diagnosed with a prostate disorder, diagnosed as chronic prostatitis and BPH which is not a presumptive disability under 38 C.F.R. § 3.309(e).  A presumption of service connection does not exist for any disability not specifically listed under 38 C.F.R. § 3.309(e) and there is no evidence in the record that provides any indication that the Veteran’s disability is relate to his active service, to include herbicide agent exposure.  Accordingly, entitlement to service connection for prostate disorder, diagnosed as chronic prostatitis and BPH is denied.  

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

REASONS FOR REMAND

16. Entitlement to service connection for hypertension associated with type II diabetes with diabetic retinopathy and cataracts or other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as posttraumatic stress disorder (PTSD); is remanded.

The Veteran was afforded a VA examination in September 2019.  The September 2019 VA examiner noted that the Veteran suffers from essential/primary hypertension and that there are numerous risk factors capable of contributing to elevated blood pressures including age, race, family history, obesity, sedentary lifestyles, tobacco use, heavy sodium intake, potassium levels, vitamin D levels, alcohol use, stress, renal disease, thyroid problems, certain medications, illegal drugs, etc.  The September 2019 VA examiner concluded that the Veteran’s hypertension is less likely than not (less than 50 percent probability) is a direct result of his active service because there is no diagnosis during his military service and the Veteran’s medical treatment records reflect the earliest records of possible hypertension in 2002 and that his hypertension preexisted his diagnosis of type II diabetes mellitus (2014) and therefore it is less likely than not (less than 50 percent probability) that the Veteran’s hypertension is the result of his service-connected type II diabetes mellitus.

However, despite the September 2019 VA examiner opining that risk factors for hypertension include stress and alcohol use; and the Veteran is service-connected for other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD). The Board notes that the September 2019 VA examiner did not provide an opinion if the Veteran’s hypertension is associated with (including aggravated beyond its natural progression) his other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) or any other service-connected disability.

Therefore, a remand is required to obtain an addendum opinion.

17. Entitlement to service connection for glaucoma is remanded.

18. Entitlement to service connection for blindness is remanded.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that his glaucoma and blindness are related to his service-connected type II diabetes mellitus or herbicide agent exposure.  As a preliminary matter, the issue of entitlement to service connection for blindness appears to be an additional claim for service connection for impairments to visual acuity and visual field which are already included within the other three disabilities (cataracts, diabetic retinopathy, and glaucoma) on appeal.  Although the Board found new and material evidence for the Veteran’s claim of entitlement to service connection for blindness, it is unclear as to the basis of a separate general claim for visual impairments when the issue is also addressed under entitlement to service connection for glaucoma.

The question for the Board is what visual impairment(s) are due to the Veteran’s service and what is the level of the Veteran’s visual impairment(s) are due to his service-connected disabilities.  However, the Board also notes that the October 2019 VA examiner found that the Veteran does not have statutory blindness based upon visual field loss.

Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Veteran was afforded a VA examination in October 2019.  The October 2019 VA examiner noted that the Veteran’s vision and visual field have deteriorated due to the Veteran’s glaucoma with minimal evidence of nonproliferative diabetic retinopathy.  The October 2019 VA examiner also opined that the Veteran’s glaucoma is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the Veteran’s glaucoma was diagnosed and treated in 1998 according to the medical file and glaucoma does not appear with increased incidence in diabetics or from herbicide agent exposure.

The RO also obtained a VA examination addendum opinion in November 2019 from the same VA examiner.  The November 2019 VA examiner opined that the Veteran’s visual field defects are secondary to his glaucoma.  The examiner also noted that his central field loss in the left eye is due to an advanced cataract and the cataract has been removed in the Veteran’s right eye, so the cataract plays no role in the loss of vision in the right eye.

However, the VA examiner did not provide an opinion if the Veteran’s glaucoma is caused by or aggravated beyond its natural progression by his service-connected cataracts and/or diabetic retinopathy.  Therefore, remand is required for an addendum opinion.

19. Entitlement to a separate compensable disability rating for cataracts (currently rated under type II diabetes mellitus) is remanded.

20. Entitlement to a separate compensable disability rating for diabetic retinopathy (currently rated as noncompensable disability associated with type II diabetes mellitus) is remanded.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Finally, because a decision on the remanded issues of entitlement to service connection for glaucoma and entitlement to service connection for blindness could significantly impact a decision on the issues of entitlement to a separate compensable disability rating for cataracts (currently rated as noncompensable disability associated with type II diabetes mellitus) and entitlement to a separate compensable disability rating for diabetic retinopathy (currently rated as noncompensable disability associated with type II diabetes mellitus), the issues are inextricably intertwined.  A remand of the claims for the issues of entitlement to a separate compensable disability rating for cataracts (currently rated as noncompensable disability associated with type II diabetes mellitus) and entitlement to a separate compensable disability rating for diabetic retinopathy (currently rated as noncompensable disability associated with type II diabetes mellitus) is required.

Accordingly, the case is REMANDED for the following action:

1. Obtain any updated treatment records not already in the file pertaining to treatment for the Veteran’s cataracts, if any.  Specifically, if the Veteran has had his left eye cataract removed.

2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not proximately due to a service-connected disability, to include but not limited to his service-connected other specified trauma and stressor related disorder (to include alcohol use disorder; claimed as PTSD) and/or aggravated beyond its natural progression by a service-connected disability.

3. After the above has been completed, obtain an addendum opinion regarding the etiology of the Veteran’s glaucoma and blindness from a VA examiner.  The entire claims file must be made available to and be reviewed by the examiner.  If an examination is deemed necessary, it shall be provided.  An explanation for all opinions expressed must be provided.  

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s glaucoma or blindness had onset in, or is otherwise related to active service, including but not limited to being caused by or aggravated beyond its natural progression by the Veteran’s service-connected cataracts and/or his service-connected diabetic retinopathy.  

The examiner must specifically address the following:

(a)	Is it at least as likely as not (50 percent probability or greater) that the Veteran’s glaucoma or blindness is aggravated beyond its natural progression due to the Veteran’s service-connected cataracts and/or diabetic retinopathy.

(b)	If the examiner finds that it is less likely than not (less than 50 percent probability) that the Veteran’s glaucoma or blindness is aggravated beyond its natural progression due to the Veteran’s service-connected cataracts and/or diabetic retinopathy, the examiner must provide the following information:

i.	What is the Veteran’s visual acuity due solely to his service-connected disabilities of bilateral cataracts and diabetic retinopathy?

ii.	What is the Veteran’s visual field loss (including but not limited to the central field loss in the left eye due to an advanced cataract) due solely to his service-connected disabilities of bilateral cataracts and/or diabetic retinopathy?

iii.	If the Veteran has had the left eye cataract removed, the examiner should provide a detailed analysis of both pre-operative repair and post-operative repair. 

(Continued on the next page)

4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to a separate compensable disability rating for cataracts and entitlement to a separate compensable disability rating for diabetic retinopathy.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Deemer, Associate 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.