Citation Nr: 0735825 Decision Date: 11/14/07 Archive Date: 11/26/07 DOCKET NO. 06-11 587 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for claimed hypertension, to include as secondary to the service- connected Type 2 Diabetes Mellitus. 2. Entitlement to service connection for claimed coronary artery disease (CAD), to include as secondary to the service- connected Type 2 Diabetes Mellitus. 3. Entitlement to service connection for claimed erectile dysfunction, to include as secondary to the service-connected Type 2 Diabetes Mellitus. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) for compensation purposes. 5. Entitlement to an initial rating in excess of 30 percent for the service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from February 1963 to June 1966. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from December 2004 and February 2005 rating decisions of the RO. The Board notes that additional evidence was submitted after the February 2006 Statement of the Case (SOC) was issued. The veteran waived initial RO consideration of the newly submitted evidence. As such, a remand for the RO to address this material is not required prior to the Board considering it in rendering the instant decision. 38 C.F.R. § 20.1304(c). The December 2004 rating decision awarded service connection for PTSD and assigned a 10 percent rating, effective in March 2004. The veteran filed a timely Notice of Disagreement (NOD) in April 2005 with the initial rating assigned. While a 30 percent rating was subsequently awarded in a February 2006 rating decision, it is not the maximum benefit available. 38 C.F.R. § 4.130. An SOC was not issued. Therefore, the Board must remand the claim, pending the issuance of an SOC to the veteran and receipt of his timely appeal in response thereto. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The claims of entitlement to TDIU rating and an initial rating in excess of 30 percent for the service-connected PTSD are addressed in the REMAND portion of this document and are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. The veteran presented testimony before the undersigned Veterans Law Judge in September 2007. The transcript has been obtained and associated with the claims folder. FINDINGS OF FACT 1. The currently demonstrated hypertension is shown as likely as not to have been caused by the veteran's Type 2 Diabetes Mellitus. 2. The currently demonstrated CAD is shown as likely as not to have been caused by the veteran's Type 2 Diabetes Mellitus. 3. The currently demonstrated erectile dysfunction is shown as likely as not to have been caused by the veteran's Type 2 Diabetes Mellitus. CONCLUSIONS OF LAW 1. By extending the benefit of the doubt to the veteran, his disability manifested by hypertension is proximately due to or the result of the service-connected Type 2 Diabetes Mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 2. By extending the benefit of the doubt to the veteran, his disability manifested by CAD is proximately due to or the result of the service-connected Type 2 Diabetes Mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 3. By extending the benefit of the doubt to the veteran, his disability manifested by erectile dysfunction is proximately due to or the result of the service-connected Type 2 Diabetes Mellitus. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefits sought on appeal. Assuming, without deciding, that any defect with respect to either the duty to notify or the duty to assist must be considered to harmless and will not be further discussed. Criteria Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his contentions, to include those raised at the September 2007 hearing; service medical and personnel records; post-service VA and private treatment records; and the reports of VA examination. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The veteran here asserts that his hypertension, CAD, and erectile dysfunction that are due to the service connected Type 2 Diabetes Mellitus. Having carefully considered the veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is in approximate balance and will grant service connection for hypertension, CAD, and erectile dysfunction. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). As noted, the veteran is seeking service connection on a secondary basis. A disability, which is proximately due to, or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id; See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 18 (1993). In a March 2002 rating decision, service connection was awarded for Type 2 Diabetes Mellitus. The award was based in pertinent part upon the veteran's presumed exposure to Agent Orange during his service in the Republic of Vietnam. A review of the record shows that the veteran was diagnosed with diabetes mellitus in 1982. Thereafter, he was diagnosed with hypertension in 1985, erectile dysfunction in 1994 and CAD in 2002. The treatment notes from Dr. DP dated in February 2004 show the veteran had a history of CAD, which was considered likely to be related to his diabetes considering it was multivessel in nature. Upon VA examination in July 2004, the examiner opined that the veteran's hypertension was less likely as not to be due to the Type 2 Diabetes Mellitus as it was essential hypertension. The CAD was also considered less likely as not due to the Type 2 Diabetes Mellitus and more likely due the veteran's long history of hypertension. The examiner opined erectile dysfunction was less likely as not due to the Type 2 Diabetes Mellitus and more likely due to low testosterone levels and hypothyroidism. In an April 2005 letter, Dr. DP opined that hypertension and CAD were caused by the veteran's diabetes mellitus. In a July 2006 VA outpatient treatment note, the provider opined the most probable cause of the veteran's erectile dysfunction was diabetes mellitus as it had only become severe in the past two years. Finally, in July 2007 and August 2007 letters, Dr. SDK opined that hypertension and CAD were more than likely caused by his diabetes mellitus, which had been diagnosed more than 30 years prior. Dr. DP reasoned the diabetes mellitus was an endothelial disease and that endothelial disease was the cause of the veteran's CAD and hypertension. Dr. SDK further indicated that the veteran's CAD and hypertension were being aggravated by the diabetes mellitus. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). The current medical evidence, as previously discussed, confirms the diagnoses of hypertension, CAD, and erectile dysfunction and is in relative equipoise in showing that these conditions were as likely as not caused by the service- connected Type 2 Diabetes Mellitus. Thus, by extending the benefit of the doubt to the veteran as to these matters, the grant of secondary service connection is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypertension as secondary to the service connected Type 2 Diabetes Mellitus, is granted. Service connection for CAD as secondary to the service connected Type 2 Diabetes Mellitus, is granted. Service connection for erectile dysfunction as secondary to the service connected Type 2 Diabetes Mellitus, is granted. REMAND As noted in the Introduction, in a December 2004 rating decision, the RO awarded service connection for PTSD and assigned a 10 percent rating effective March 2004. The veteran filed a timely NOD in April 2005 with the initial rating assigned. See 38 C.F.R. § 20.302(a). While a 30 percent rating was awarded in a February 2006 rating decision, in a claim for an increased disability rating, the claimaint will generally be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). See AB v. Brown, 6 Vet. App. 35 (1993). An SOC was not issued. Since it appears there has been an initial RO adjudication of the claim and a NOD as to its denial, the veteran is entitled to an SOC, and the current lack of an SOC with respect to the increased rating claim is a procedural defect requiring remand. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2006); see also Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The veteran asserts that he is entitled to TDIU rating for compensation purposes. As the claim for an initial rating in excess of 30 percent for the service-connected PTSD has not been finally adjudicated, the TDIU rating must remain in a pending status as the two matters are essentially linked. Therefore, final consideration of the TDIU rating claim should be deferred until the claim for increased has been properly adjudicated and other matters are addressed by the RO. In light of the foregoing, these remaining matters are is hereby REMANDED to the AOJ for the following actions: 1. The AOJ must provide the veteran an SOC with respect to his claim of entitlement to an initial rating in excess of 30 percent for PTSD. The veteran should be informed that he must file a timely and adequate Substantive Appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely Substantive Appeal is not filed, the claim should not be certified to the Board. If a Substantive Appeal is filed, then the claim must be reviewed in light of current appellate procedures. Any other indicated development should undertaken. 2. Thereafter, following completion of all indicated development, the AOJ should readjudicate the claim of entitlement to TDIU rating for compensation purposes in light of all the evidence of record. If any benefit sought on appeal remains denied, then the RO should provide the veteran and his representative with an SSOC and afford them an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs