13-18 483
13-18 483
Board of Vet. App.Nov 30, 2017Background
- Veteran served multiple enlistments (Army and Navy) including two Vietnam tours; filed claims for multiple conditions (hypertension, PTSD/dysthymia, diabetes, CAD, ED, hypogonadism, OSA) with various RO decisions from 2012–2014; appeals consolidated.
- VA granted service connection for CAD (presumptive herbicide exposure) and for dysthymia (secondary to CAD) effective April 11, 2011; granted service connection for diabetes effective May 2013 with a 20% rating.
- Board previously reopened the hypertension claim and remanded several issues for development; Veteran withdrew hearing requests.
- The Board adjudicated one substantive issue on the merits: whether the initial rating for type 2 diabetes should be greater than 20% (diagnostic code 7913).
- The Board denied an initial rating higher than 20% for diabetes based on medical evidence showing management by oral hypoglycemics and restricted diet but no medical evidence requiring regulation of activities (a conjunctive element for 40% rating).
- All other issues (service-connection etiologies for dysthymia, ED, hypogonadism, OSA, effective date for dysthymia, higher ratings for dysthymia, and TDIU) were remanded for further medical examination and development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether diabetes merits >20% initial rating under DC 7913 | Veteran contended diabetes severity warranted higher rating (regulation of activities present) | VA argued evidence shows only restricted diet + oral agents; no medical evidence of required activity regulation | Denied — 20% rating affirmed; no medical evidence shows regulation of activities required (40% criterion unmet) |
| Whether dysthymia effective date should predate April 11, 2011 | Attorney argued earlier PTSD claim (July 2010) and exam findings (Jan 2012) support earlier effective date for dysthymia | VA tied dysthymia effective date to CAD secondary grant; RO lacked nexus opinion tying dysthymia to service | Remanded — obtain retrospective nexus opinion and current mental exam to reassess effective date and rating |
| Whether ED and hypogonadism are secondary to service-connected conditions (diabetes, CAD, or dysthymia) | Veteran/attorney argued conditions may be caused or aggravated by service-connected diabetes or dysthymia (lay reports support stress/depression link) | Existing C&P and private DBQ mostly found no nexus to diabetes; record suggests multifactorial etiology | Remanded — obtain medical opinion(s) addressing causal/aggravating nexus with dysthymia and/or diabetes, and quantify aggravation if present |
| Whether OSA is secondary (via obesity intermediate step) to service-connected disabilities and whether OSA aggravates hypertension | Attorney and lay statements asserted weight gain from dysthymia/diabetes leads to OSA, which may aggravate hypertension | VA notes obesity is not a disability but may be an intermediate step; current record lacks adequate nexus opinions addressing this chain | Remanded — acquire focused opinions per VA General Counsel guidance on obesity as intermediate step and on whether OSA aggravates hypertension |
Key Cases Cited
- Camacho v. Nicholson, 21 Vet. App. 360 (2007) (medical evidence required to show "regulation of activities" for 40% diabetes rating)
- Peyton v. Derwinski, 1 Vet. App. 282 (1991) (trace medical history when assessing disability severity)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (present level of disability is primary focus)
- O'Connell v. Nicholson, 21 Vet. App. 89 (2007) (staged ratings for changes in severity during an initial rating period)
- Fenderson v. West, 12 Vet. App. 119 (1999) (staged rating principles)
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (psychiatric claim construed to include reasonably encompassed mental disabilities)
- Schoolman v. West, 12 Vet. App. 307 (1999) (application of reasonable doubt when evidence is balanced)
- Snuffer v. Gober, 10 Vet. App. 400 (1997) (requirement for new exam when evidence suggests worsening of condition)
- Caffrey v. Brown, 6 Vet. App. 377 (1994) (same—need for new examination if condition may have worsened)