Salazar v. McDonough
| Decision Date | 25 January 2023 |
| Docket Number | 21-5309 |
| Parties | Juan P. Salazar, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
Juan P. Salazar VA General Counsel
Before BARTLEY, Chief Judge.
Self-represented veteran Juan P. Salazar appeals a June 14, 2021, Board of Veterans' Appeals (Board) decision that denied entitlement to a disability evaluation higher than 20% for diabetes mellitus with erectile dysfunction, hypertension and a skin condition; entitlement to a compensable evaluation for bilateral hearing loss prior to December 12, 2019, and higher than a 10% evaluation from that date; and entitlement to an effective date earlier than November 29, 2010, for the grants of service connection for diabetes, bilateral hearing loss, and tinnitus. Record (R.) at 3-21.[1], [2] For the reasons that follow, the Court will affirm the June 2021 Board decision.
Mr. Salazar served honorably in the U.S. Navy from June 1969 to September 1970 including service in the Republic of Vietnam, R. at 2411, and in the U.S. Air Force from February to May 1991, see R. at 1606.
In January 1976, Mr. Salazar filed a claim for service connection for a lower back injury. Supp. R. at 2662-65. In April 1976, a VA regional office (RO) denied service connection for "developmental transitional lumbosacral junction." Supp. R. at 2536 (notification letter); see Supp. R. at 2533 (March 1976 narrative decision). Mr. Salazar did not appeal the April 1976 RO decision.
In November 2010, Mr. Salazar filed, among other things, claims for service connection for diabetes, hearing loss, and tinnitus. R. at 2511. Following VA examinations in January 2013, R. at 1650-66 (), 1675-79 (diabetes), 1705-12 (reproductive), 1713-15 (hypertension), 1694-99 (skin), the RO in March 2013 granted service connection for diabetes with erectile dysfunction, hypertension, and onychomycosis[3] and assigned a 20% initial evaluation;[4] granted service connection for hearing loss and assigned an initial noncompensable evaluation; and granted service connection for tinnitus. R. at 1585-91, 1606-07. The RO assigned an effective date of November 29, 2010, for all three disabilities. Id.
In August 2013, Mr. Salazar filed a Notice of Disagreement seeking, as relevant, higher evaluations for diabetes and hearing loss and seeking earlier effective dates for diabetes, hearing loss, and tinnitus. R. at 1568-84. Following a July 2016 Statement of the Case (SOC) addressing, as relevant, the increased-evaluation claims, R. at 1458-521, Mr. Salazar timely perfected an appeal to the Board, R. at 1438-53.
In October 2018, the Board remanded the increased-evaluation claims to obtain new VA examinations and remanded the earlier-effective-date claims for the RO to provide an SOC. R. at 1235-46. The examinations were conducted in December 2019. R. at 927-37 (), 906-14 (diabetic sensory-motor peripheral neuropathy), 915-26 (reproductive), 855-66 (hypertension), 867-82 (skin). In August 2020, the RO granted a 10% evaluation for hearing loss effective December 12, 2019, and granted service connection for bilateral lower extremity diabetic peripheral neuropathy and lumbar radiculopathy and assigned 10% evaluations for each side. R. at 398-403. Also in August 2020, the RO issued an SOC addressing the earlier-effective-date claims. R. at 462-504. In October 2020, Mr. Salazar attended another VA examination for hearing loss. R. at 285-93.
In the June 2021 decision on appeal, the Board denied a higher evaluation for diabetes because treatment did not require insulin or regulation of activities. R. at 9-11; see 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2022). The Board concluded that separate evaluations were not warranted for the veteran's erectile dysfunction, hypertension, or skin condition. R. at 12-13. The Board denied higher evaluations across the appeal period for hearing loss. R. at 13-17. Finally, the Board denied effective dates earlier that November 29, 2010, for the grants of service connection for diabetes, hearing loss, and tinnitus, concluding that that date represented the date VA received the veteran's service-connection claims. R. at 6-8. This appeal followed.
Mr. Salazar's appeal is timely, and the Court has jurisdiction to review the June 2021 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
Board determinations regarding the appropriate degree of disability and effective dates for disability compensation are findings of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see Evans v. West, 12 Vet.App. 396, 401 (1999); Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board must support its material determinations of fact and law with adequate reasons or bases. 38 U.S.C. § 7104(d)(1); Pederson v. McDonald, 27 Vet.App. 276, 286 (2015); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Under a liberal construction of his brief, see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992), Mr. Salazar generally argues that the Board failed to provide adequate reasons or bases for its decision regarding all claims. Appellant's Informal Brief (Br.) at ii-iv, 1-11. In general, the Secretary disputes these assertions and urges the Court to affirm the Board decision in its entirety. Secretary's Br. at 4-15. Where Mr. Salazar has raised specific arguments, the Court will address them in turn.[5]
Diabetes is evaluated under DC 7913, which provides, in relevant part, a 20% evaluation when diabetes requires a restricted diet and either insulin injections or oral hypoglycemic medication. 38 C.F.R. § 4.119. The next higher 40% evaluation is warranted when diabetes requires all of the following: insulin injections, restricted diet, and regulation of activities. 38 C.F.R. § 4.119, DC 7913; see Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013) (). To demonstrate that regulation of activities is required, medical evidence must show that strenuous occupational and recreational activities are to be avoided. Camacho v. Nicholson, 21 Vet.App. 360, 363-64 (2007). Additionally, Note (1) to DC 7913 provides that compensable diabetes complications are to be evaluated separately but noncompensable complications are considered part of the diabetic process. 38 C.F.R. § 4.119.
Mr. Salazar's diabetes is currently evaluated at 20%. The Board found that a 40% evaluation was not warranted because Mr. Salazar's diabetes did not require insulin injections or restriction of activities. R. at 10. It also found that the veteran's erectile dysfunction, hypertension, and skin condition were noncompensable complications and, thus, the veteran was not entitled to separate evaluations for those conditions. R. at 12-13.[6]
Mr. Salazar argues that the Board erred in denying a higher evaluation for diabetes because it relied on its own unsubstantiated medical opinion to conclude that his diabetes did not require regulation of activities, a conclusion that, he contends, directly contradicts the opinion of the January 2013 VA examiner. Appellant's Informal Br. at 9-10. Mr. Salazar also argues that the Board erred by failing to award separate evaluations for his erectile dysfunction, hypertension, and skin condition. Appellant's Informal Br. at 10. The veteran's arguments are unpersuasive.
Even if the Board erred with respect to its finding concerning regulation of activities, all three criteria listed in the 40% level under DC 7913 must be met to warrant a 40% evaluation, including that insulin injections are required. See Middleton, 727 F.3d at 1178; 38 C.F.R. § 4.119, DC 7913. The Board found that Mr. Salazar's diabetes required oral hypoglycemic medication without insulin injections. R. at 11. Mr. Salazar neither contends that he requires insulin injections nor identifies any evidence demonstrating insulin injections. See Appellant's Informal Br. at 10 (). Thus, the Court discerns no error in the Board's ultimate conclusion that a 40% evaluation was not warranted.
Regarding complications, Mr. Salazar appears to assert that he is entitled to separate evaluations, namely a 20% evaluation for erectile dysfunction under 38 C.F.R. § 4.115b, DC 7522 a 30% evaluation for hypertensive heart disease under 38 C.F.R. § 4.104, DC 7007, and a 10% evaluation for the skin condition under 38 C.F.R. § 4.71a, DC 5284. Appellant's Informal Br. at 4. However, even under a liberal construction of his brief, Mr. Salazar does not explain why these complications warrant separate, compensable...
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