Citation Nr: 1336265 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 11-00 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include on a secondary basis. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a disability manifested by high cholesterol. 3. Entitlement to a compensable initial evaluation for erectile dysfunction, to include entitlement to special monthly compensation based on loss of use of a creative organ. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An unappealed September 2006 rating decision denied service connection for hypertension. The Veteran was notified of this decision, but did not file a timely appeal. 2. The evidence added to the claims file since the September 2006 determination is essentially cumulative of the evidence previously of record and does not provide a reasonable possibility of substantiating the claim of service connection for hypertension, to include on a secondary basis. 3. An unappealed March 2006 rating decision denied service connection for a disability manifested by high cholesterol. The Veteran was notified of this decision, but did not file a timely appeal. 4. The evidence added to the claims file since the March 2006 determination is essentially cumulative of the evidence previously of record and does not provide a reasonable possibility of substantiating the claim of service connection for a disability manifested by high cholesterol. 5. The Veteran's erectile dysfunction has not resulted in deformity of the penis. 6. Loss of use of a creative organ has been demonstrated by the record. CONCLUSIONS OF LAW 1. The RO's decision of September 2006, which denied service connection for hypertension, to include on a secondary basis, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). 2. The evidence received since the September 2006 rating decision is not new and material to reopen the appellant's claim of service connection for hypertension, to include on a secondary basis. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The RO's decision of March 2006, which denied service connection for a disability manifested by high cholesterol, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2013). 4. The evidence received since the March 2006 rating decision is not new and material to reopen the appellant's claim of service connection for a disability manifested by high cholesterol. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 5. The criteria for a compensable initial evaluation for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.31, 4.115b, Diagnostic Code 7522 (2013). 6. The criteria for special monthly compensation based on loss of use of a creative organ have been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002); 38 C.F.R. § 3.350(a)(1) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. A February 2010 letter provided notice in accordance with Kent, and also explained the evidence VA was responsible for providing and the evidence he was responsible for providing. This letter also informed the appellant of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The appeal regarding the claim for erectile dysfunction is from the initial rating assigned with the award of service connection. The statutory scheme contemplates that once a decision awarding service connection, disability ratings, and effective dates has been made, statutory notice has served its purpose, and its application is no longer required because the claim has been substantiated. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). The November 2010 statement of the case properly provided notice on the downstream issue of an increased initial rating. It is not alleged that notice has been less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (when a claim has been substantiated, the Veteran bears the burden of demonstrating prejudice from defective notice with respect to downstream issues). The Veteran's service treatment records and pertinent post-service treatment records have been secured. The duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). He has not identified any pertinet evidence that remains outstanding. VA's duty to assist is also met. Analysis The Board has reviewed all the evidence in the appellant's claims file. 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 appellant 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 the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). I. New and Material Claims Service connection for a disability manifested by high cholesterol was denied by the RO in a March 2006 rating decision, and service connection for hypertension was denied in a September 2006 rating action. The Veteran was notified of each of these determinations. He did not file notices of disagreement. Moreover, although certain evidence was received into the claims file within one year, the evidence was not new and material to the issues. Under the circumstances, these rating decisions became final. 38 U.S.C.A. § 7105. The Veteran subsequently again advanced the hypertension and high cholesterol claims, and the present appeal ensued. It appears that the November 2010 statement of the case reopened the Veteran's claim for service connection for hypertension. Thus, it considered the claim without regard to finality of the previous determination, and decided the claim on the merits. Nevertheless, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Pursuant to 38 U.S.C.A. § 7105(c), a final decision by the RO may not thereafter be reopened and allowed. The exception to this rule is found at 38 U.S.C.A. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once an RO decision becomes final under section 7105(c), absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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(a). The VA is required to review for its newness and materiality only the evidence received since the last final disallowance of a claim on any basis in order to determine whether a claim should be reopened and re-adjudicated on the merits. See Evans v. Brown, 9 Vet. App. 273 (1996). The prior evidence of record is important in determining newness and materiality for the purposes of deciding whether to reopen a claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the March and September 2006 rating decisions included the service treatment records and private and VA medical records. The service treatment records contain no complaints or findings pertaining to hypertension or high cholesterol. A clinical evaluation of the vascular system on the separation examination in December 1971 was normal, and blood pressure was 124/82. VA outpatient treatment records reflect that when the Veteran was seen in October 2000, it was indicated he had borderline hypertension in the past. It was also noted he had been diagnosed with diabetes mellitus in 1997. Blood pressure was 153/91. The assessment was elevated blood pressure. Private medical records show the Veteran was seen in July 2002. Blood pressure was 146/90. Cholesterol was 273 mg/dl. This was noted to be high. Lipitor was prescribed. It was reported in June 2003 that the Veteran's blood pressure was 160/100. The examiner stated this was not satisfactory, and added medication. VA outpatient treatment records disclose the Veteran was seen in September 2004. Blood pressure was 140/82. Cholesterol was 201 mg/dl. Hyperlipidemia was noted. A VA Agent Orange registry examination was conducted in July 2005. The history of present illness noted hypertension and dyslipidemia. On VA examination for diabetes mellitus in July 2005, it was reported the Veteran had been diagnosed with diabetes when he was 45 years old. The March 2006 rating decision denied service connection for a disability manifested by high cholesterol. It was noted it is a laboratory finding and not a disability for VA purposes. The Veteran's claims folder was reviewed by a VA physician in June 2006. The examiner listed some laboratory findings and stated they indicated the Veteran had borderline kidney function, but not abnormal enough to justify a diagnosis of nephropathy. He observed that the Veteran had been prescribed losartan for hypertension, rather than for nephropathy, even though it was apparently a medication that was good to use in the presence of nephropathy. The impression was hypertension, not worsened by the Veteran's kidney function and, therefore, not secondary to diabetes. The examiner opined it was less than 50 percent likely that the Veteran's hypertension was worsened by his diabetes or kidney function. The September 2006 rating decision denied service connection for hypertension on the basis it was not present during service or within one year thereafter. In addition, it was stated it was not due to diabetes mellitus. The additional evidence includes VA outpatient treatment records, the report of a March 2010 VA examination and the Veteran's testimony at a hearing before the undersigned. The Veteran was seen for follow-up of high blood pressure and hyperlipidemia in October 2007. The Veteran's medication regimen was adjusted to improve his blood pressure control. On VA examination in March 2010, it was reported the Veteran had been diagnosed with hypertension about ten years earlier, and had been on medication since then. It was also noted he had hypercholesterolemia, and was on medication for it. Following an examination, the impressions were that the Veteran had diabetes mellitus, type 2, borderline kidney function, not justifying the diagnosis of nephropathy, and that the Veteran's hypertension was not worsened by kidney function and not secondary to diabetes. The Veteran has been granted service connection for diabetes mellitus, type II, with borderline kidney function, evaluated as 20 percent disabling; and for erectile dysfunction, evaluated as noncompensable. While the medical records received in conjunction with his attempt to reopen his claim confirm the Veteran has hypertension and high cholesterol, this does not constitute new and material evidence. The evidence merely provides information that was of record at the time of the March and September 2006 determinations, that is, that the Veteran had hypertension that was initially demonstrated many years after service, and is not related to service or to his service-connected diabetes mellitus. The evidence also confirmed the Veteran has high cholesterol. The fact remains there is no competent medical evidence linking hypertension to service or to diabetes mellitus. Elevated cholesterol is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.) The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection can only be granted for a disability resulting from disease or injury. See 38 U.S.C.A. §§ 1110, 1131. Despite the post-service evidence that reveals a diagnosis of hyperlipidemia many years after service, the Board concludes this condition manifests itself only in laboratory test results and is not a disability for which service connection can be granted. As such, service connection for hyperlipidemia is not warranted. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. The additional evidence fails to establish the Veteran has hypertension that is related to service, or a disability manifested by high cholesterol. Thus, the element of the claim lacking substantiation in March and September 2006 remains lacking. The Board further notes the Veteran's belief that he has hypertension that is related to service or his service-connected diabetes mellitus. Although he is competent to state his symptoms, he is not, as a lay person, qualified to render a medical diagnosis or an opinion concerning medical causation on these matters. To the extent the Veteran contends he has hypertension that is related to service or diabetes mellitus, the Board finds the medical evidence of record to be more competent and probative of such a relationship than the Veteran's lay contention, as the etiology of a disability requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). With respect to high cholesterol, the evidence continues to show this, but there is no competent medical evidence of any disability resulting from it. Thus, the additional evidence does not raise a reasonable possibility that the Veteran's hypertension is related to service or a service-connected disability, or that he has a disability manifested by high cholesterol, when considered in conjunction with the record as a whole. The Board concludes, therefore, that the evidence is not new and material, and the claims for service connection for hypertension, to include on a secondary basis, and for a disability manifested by high cholesterol are not reopened. II. Increased rating 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. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). A 20 percent rating may be assigned for deformity of the penis with loss of erectile power. 38 C.F.R. §§ 4.20, 4.115b, Diagnostic Code 7522. In every instance where the Rating Schedule does not provide a compensable percentage evaluation for a Diagnostic Code, a noncompensable evaluation is assigned when the requirements for a compensable rating of a diagnostic code are not shown. 38 C.F.R. § 4.31. The Board concedes the Veteran has erectile dysfunction. This was most recently confirmed on the March 2010 VA examination. However, absent evidence of penile deformity, a compensable schedular rating is not assignable for erectile dysfunction under Diagnostic Code 7522. As the criteria for a compensable rating under Diagnostic Code 7522 are not met, a noncompensable rating is proper pursuant to 38 C.F.R. § 4.31. The Board notes that the issue of entitlement to special monthly compensation based on loss of use of a creative organ has been raised by the record. Specifically, at the April 2012 Board hearing the Veteran's representative clarified that the Veteran was seeking this benefit in associate with the increased rating aspect of the claim. The Board finds the Veteran's testimony regarding his erectile dysfunction to be both competent and credible. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that special monthly compensation based on loss of use of a creative organ is warranted. ORDER New and material evidence has not been received to reopen a claim of service connection for hypertension. New and material evidence has not been received to reopen a claim of service connection for a disability manifested by high cholesterol. A compensable initial schedular evaluation for erectile dysfunction is not warranted. To this extent, the appeal is denied. Special monthly compensation based on loss of use of a creative organ is warranted. To this extent, the appeal is granted, subject to the governing laws and regulations pertaining to the payment of monetary benefits. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs