Citation Nr: 0945519 Decision Date: 12/01/09 Archive Date: 12/08/09 DOCKET NO. 05-19 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to an initial compensable rating for diabetic retinopathy of the right eye. 3. Entitlement to service connection for an upper extremity disorder, claimed as peripheral neuropathy, to include as secondary to a service-connected disability. 4. Entitlement to service connection for skin rash, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) of the Cleveland, Ohio Tiger Team. The case was subsequently transferred to the Montgomery, Alabama RO where it was certified on appeal. FINDINGS OF FACT 1. Diabetes mellitus, type II is productive of the need for oral hypoglycemic agent and restricted diet; insulin and regulation of activities is not shown. 2. Diabetic retinopathy of the right eye is productive of 20/20 corrected visual acuity; 20/50 to 20/100 corrected visual acuity of eye is not shown. 3. A diagnosis of peripheral neuronopathy of the upper extremities is not shown. 4. The Veteran had service in the Republic of Vietnam during the Vietnam War, and exposure to Agent Orange is presumed. 5. A skin rash, diagnosed as dermatitis, is not recognized by VA as causally related to exposure to herbicide agents used in Vietnam. 6. A skin rash was not demonstrated during service, or for many years thereafter; a skin rash is not related to active service. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for diabetes mellitus, type II have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913 (2009). 2. The criteria for an initial compensable rating for diabetic retinopathy of the right eye have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.84, DC 6079 (2009). 3. An upper extremity disorder, claimed as peripheral neuropathy was not incurred in or aggravated by service, nor is it due to a service-connected disability. 38 U.S.C.A. §§ 1110, 1155, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.310 (2009). 4. A skin rash was not incurred in or aggravated by service, nor can it be presumed to be due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103(a), 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). The United States Court of Appeals for Veterans Claims (Court) indicated that a claimant will generally be presumed to be seeking the maximum benefits allowed by law and regulations, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1992). Service connection for diabetes mellitus, type II was granted by rating decision of October 2004 and a 20 percent rating was granted, effective February 2003. Service connection for diabetic retinopathy, right eye, was also granted by rating decision of October 2004. A noncompensable rating was granted, effective October 2004. March 2005. The Veteran disagreed with the initial ratings. Diabetes Mellitus, Type II Under the applicable rating criteria, evidence that diabetes mellitus requires insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet, warrants a 20 percent rating. 38 C.F.R. § 4.119, DC 7913 (2009). The next higher evaluation, 40 percent, requires evidence of the need for insulin, a restricted diet, and regulation of activities. Id. Throughout the current appeal, the Veteran has asserted that his diabetes mellitus, type II, is more severe than the current 20 percent evaluation reflects. Medical evidence received during the current appeal clearly illustrates that his diabetes mellitus requires oral hypoglycemic agent and restricted diet. An October 2004 VA examination showed that the Veteran took oral medication twice a day. The examination showed that he did not have any restrictions and was active around the house. He had a tractor and took care of the yard. He worked around the house and sometime walked seven miles at a time. January 2006 VA outpatient treatment evidence showed that the Veteran was rated at low risk for complications for uncontrolled diabetes mellitus; however, in April 2006, his diabetes mellitus was described as uncontrolled and his medication was increased. An August 2007 VA examination showed his HgbA1c and diabetes mellitus were stable. The evidence does not show, however, that the Veteran's diabetes mellitus is of such severity as to require restriction of his activities. Of particular significance to the Board is the evidence in the record that he walked seven miles at a time and was active around his house, indicating no restriction on his activities. As regulation of the Veteran's activities due to his diabetes has not been shown, there is no basis to assign a rating greater than the currently-assigned evaluation of 20 percent at any time during the current appeal. The evidence is not in equipoise, therefore, the provisions of 38 U.S.C.A. § 5107(b) regarding resolution of reasonable doubt are not applicable. Hence, the appeal is denied. Diabetic Retinopathy of the Right Eye Under applicable rating criteria, Note 1 following DC 7913 stipulates that compensable complications of diabetes will be evaluated separately unless they are part of the criteria used to support a 100 percent rating and that noncompensable complications are considered to be part of the diabetic process under DC 7913. Evaluations of defective vision range from 10 percent to 100 percent based on impairment of central visual acuity or anatomical loss of one eye or both eyes under the provisions of DCs 6061 to 6079. When service connection is in effect for only one eye, the nonservice-connected eye is considered to have vision of 20/40 or better. Only when a veteran has blindness in one eye which is service connected and nonservice-connected blindness in the other eye will the rating be evaluated as if both disabilities were service connected. 38 U.S.C.A. § 1160; 38 C.F.R. § 3.383. Under DC 6079, which relates to visual acuity, a 10 percent rating contemplates visual acuity ranging from 20/50 to 20/100 in the service-connected eye. A higher, 20 percent disability rating (under DC 6077) requires visual acuity in the service-connected eye of 20/200 or worse. The best distant vision obtainable after best correction by glasses will be the basis of the rating. See 38 C.F.R. § 4.75. In the instant case, the Veteran underwent a VA examination in October 2004. It was noted that he was seen in the eye clinic in September 2004 with no findings of diabetic retinopathy. He had visual acuity corrected to 20/20. There were no complaints of visual field defects. The diagnostic impression was very mild nonproliferative diabetic retinopathy of the right eye, refraction of compound hyperopic astigmatism and presbyopia in each eye. The Veteran testified at a RO hearing in May 2006. He stated that he had sharp pain in his right eye, usually two times a week. He stated that his eyesight had improved and that it was now corrected by glasses. In August 2007, he underwent a VA examination for his diabetic mellitus. The eye examination showed normal visual acuity and normal visual fields. The examination indicated that there was no diabetic retinopathy. In light of the evidence, the Board finds that a compensable evaluation for diabetic retinopathy is not warranted. The Veteran's diabetic retinopathy manifests in no worse than 20/20 corrected vision in the right eye. As his central visual acuity is better than 20/50, the right eye diabetic retinopathy is noncompensable. The October 2004 VA examination showed very mild nonproliferative diabetic retinopathy of the right eye, refraction of compound hyperopic astigmatism and presbyopia in each eye; however, refraction of compound hyperopic astigmatism and presbyopia in each eye, are not diseases or injuries within the meaning of VA legislation. See 38 C.F.R. § 3.303 (b). The Board further notes that there is no recent evidence of active pathology in the right eye. Accordingly, the claim of entitlement to a compensable evaluation for right eye diabetic retinopathy is not warranted. With respect to the Veteran's increased rating claims, the Board has also considered his statements and sworn testimony that his disabilities are worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of his disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1) (2009), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. Therefore, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Veteran has not been hospitalized for his diabetes mellitus, type II or right eye diabetic retinopathy. Further, the evidence does not show, nor has he claimed, marked interference with employment. Moreover, the rating criteria reasonably describe his disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. Consequently, referral to the Under Secretary for Benefits or the Director, Compensation and Pension Service, under 38 C.F.R. § 3.321 is not warranted. Service Connection Claims Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2009). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Peripheral Neuropathy of the Upper Extremities The Veteran claims that he has peripheral neuropathy of the upper extremities, to include as due to service-connected diabetes mellitus, type II. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, none of the Veteran's service treatment records show findings, treatment, or diagnoses for peripheral neuropathy of the upper extremities. Therefore, peripheral neuropathy or any symptoms reasonably attributed thereto was not noted in service. Post-service evidence reflects that the Veteran complained of numbness in his hands in February 2004 VA outpatient treatment records. In an October 2004 VA examination, he complained of numbness in his left and right arms but there were no signs of paresthesia. Electromyography and nerve conduction studies were normal. Therefore, peripheral neuropathy has not been shown by the medical evidence of record. The Board has considered the Veteran's hearing testimony and statements asserting a nexus between diabetes mellitus II and upper extremities symptomatology; however, there is no present disability of the upper extremities shown. Therefore, in the absence of peripheral neuropathy of the upper extremities, service connection for peripheral neuropathy of the upper extremities is not warranted. Skin Rash In addition to the regulations cited above, diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The following diseases are associated with herbicide exposure for the purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus, Hodgkin's disease, CLL, multiple myeloma, non- Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft- tissue sarcomas. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). The Veteran claims that he has skin rash, to include as due to exposure to herbicides during his tour in Vietnam. Service treatment records are devoid of findings of complaints, treatment, or diagnosis of a skin rash. Therefore, a chronic skin disorder was not noted in service. Post-service evidence reflects that he underwent a VA examination in February 1987. There were no skin complaints during this examination, and when his skin was examined, it was found to be normal. In October 2004, he underwent a VA diabetes mellitus examination. He complained of a 7 to 8 year history of blisters on his feet, especially between his toes. Examination of the skin was normal. The examiner diagnosed skin rash resolved, not related to herbicide exposure. A VA skin examination revealed a history of dermatitis of 30 years, but had not been active for the past few years since his diabetes mellitus was controlled and he was using a lubricant. It was also noted that he could not use cologne. The diagnosis was no active dermatitis. During the May 2006 RO hearing, he Veteran testified that his skin rash started in the late 70's or early 80's. He stated that he did not know what brought about the rash, only that he was having scratching and itching. He testified that his doctor told him that the skin rash was consistent with a nerve problem. He also stated that he had the rash on his limbs and sometimes on his stomach and knees. He testified that he did not have the rash in service. The Board will first address the Veteran's contention that his skin rash is due to exposure to herbicides during his active service in Vietnam. In this regard, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6). The Veteran's DD 214 establishes that he had active service in the Republic of Vietnam within the presumptive period specified above. As such, it is presumed that he was exposed to an herbicide agent during active service. See 38 C.F.R. § 3.307(a)(6)(iii). Despite presumed exposure to an herbicide agent, presumptive service connection under 38 C.F.R. § 3.307(a)(6) is still not for application. Indeed, service connection is only warranted on this basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e), to include chloracne or other acneform diseases consistent with chloracne. Therefore, because a skin rash characterized as dermatitis is not among the disorders listed under 38 C.F.R. § 3.309(e), an award of presumptive service connection based on herbicide exposure is not warranted. Next, the Board will consider the claim on a direct basis. Where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has determined that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the competent evidence does not relate the skin rash to in-service herbicide exposure or to any other incident of active service. First, the service treatment records did not show any complaints or treatment referable to skin rash. Furthermore, a separation examination completed in December 1971, just prior to discharge from active duty service, revealed normal clinical evaluations of the skin. Based on the foregoing, the service records do not reflect skin rash. As previously stated, this does not in itself preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Nevertheless, a review of the previously cited post-service evidence does not support the conclusion that skin rash is causally related to active service. The post-service medical evidence does not reveal any skin complaints or skin disorder in his first VA examination after service in 1987. His skin was described as normal. The first evidence of skin complaints was in 2004, and the Veteran stated that the condition began 7 to 8 years prior to the examination, dating the onset to 1996 or 1997, more than 20 years after discharge. Moreover, during his May 2006 hearing testimony he indicated that his skin disorder did not occur in service, and he testified that his physician attributed his skin condition to a nerve condition. Therefore, the medical evidence does not show continuity of symptomatology. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that no medical professional has related the Veteran's skin rash to active duty service. Therefore, no medical nexus has been shown. In this case, the Veteran states that his skin condition did not begin until after service, and the first medical evidence of a skin rash in October 2004 indicates that the rash had resolved and was not due to herbicide exposure. As such, since the skin rash is not a presumptive disease for herbicide exposure, it did not occur in service, and it has not been attributed to service or herbicide exposure, service connection for a skin rash is not warranted on a presumptive or direct basis. The Board has also considered the Veteran's statements regarding continuity since service. As noted above, he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that to the extent the Veteran maintains a history of continued symptomatology since active service, his statements, while competent, are nonetheless not credible. First, the Board emphasizes the multi-year gap between discharge from active duty service (1971) and initial reported symptoms related to a skin disorder in 2004 (over 40 years later). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Moreover, a history of a continued skin disorder since active service is inconsistent with the other evidence of record. Indeed, a chronic skin disorder was not shown in service or on a VA examination undertaken 16 years after service. Further, the post-service evidence does not reflect complaints related to a skin disorder for more than 30 years following active service. To the extent the Veteran's statements assert continuity of symptomatology, the Board finds his current recollections and statements made in connection with a claim for benefits to be of lesser probative value. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Therefore, continuity has not here been established, either through the medical evidence or through his statements. The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between a skin disorder and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, a chronic skin disease is not the types of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2). In the event that a VA notice error occurs regarding the information or evidence necessary to substantiate a claim, VA bears the burden to show that the error was harmless. However, the appellant bears the burden of showing harm when not notified whether the necessary information or evidence is expected to be obtained by VA or provided by the appellant. See Shinseki v. Sanders. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's diabetes mellitus, type II and diabetic retinopathy of the right eye claims arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's VA outpatient treatment records, and he was afforded VA examinations in October 2004 and August 2007. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As to the service connection claims, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2004 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in March 2006, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issues on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained VA outpatient treatment records. Further, the Veteran was provided an opportunity to set forth his contentions during an RO hearing in May 2006. Next, specific medical opinions pertinent to the issues of diabetic retinopathy, bilateral peripheral neuropathy of the upper extremities, and skin rash were obtained in October 2004 and August 2007. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An initial rating in excess of 20 percent for diabetes mellitus, type II is denied. An initial compensable rating for diabetic retinopathy of the right eye is denied. Service connection for an upper extremity disorder, claimed as peripheral neuropathy, to include as due to a service- connected disability, is denied. Service connection for skin rash, to include as due to herbicide exposure, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs