Citation Nr: 0811499 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-12 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a skin disorder. 2. Entitlement to service connection for diabetic retinopathy, claimed as secondary to diabetes mellitus. 3. Entitlement to service connection for high cholesterol. 4. Entitlement to service connection for hypertension, claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to April 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board also notes that additional evidence has been received since the case was certified for appeal. That evidence includes a statement from the veteran to his Congresswoman regarding his claims. This evidence was received after the last RO review. The Board has, accordingly, reviewed the additional evidence and is of the opinion that, while pertinent to the issues on appeal, is essentially duplicative of statements already considered. Accordingly, the Board concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to review the evidence in question. Further, in that same correspondence, it appears that the veteran may be attempting to raise new claims with respect to erectile dysfunction and loss of use of his left side. If he desires to pursue these claims, he should do so with specificity at the RO. FINDINGS OF FACT 1. There is no competent evidence of a current diagnosis of a skin disorder. 2. There is no competent evidence of a current diagnosis of diabetic retinopathy. 3. High cholesterol, without manifestations of an underlying disorder, is not a disability for which compensation is payable. 4. Hypertension was not shown in service or for many years thereafter. 5. The medical evidence does not show that the veteran's current hypertension is associated with military service or any incident therein. 6. The medical evidence does not show that the veteran's hypertension is secondary to his service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. A skin disorder was not incurred in or aggravated by active duty service; a skin disorder has not been shown by the objective evidence of record. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 2. Diabetic retinopathy was not incurred in or aggravated by active duty service; diabetic retinopathy has not been shown by the objective evidence of record. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). 3. A disorder manifested by high cholesterol is not shown to have been incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2007). 4. Hypertension was not incurred in or aggravated by the veteran's period of active duty, and may not be presumed to have been incurred therein; hypertension is not shown to be proximately due to service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, 1131 (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) (2007). 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) (2007). 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) (2007). 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). Service connection may also be granted as secondary to any service-connected disability when the evidence shows the disability is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, to include hypertension, may be presumed to have been incurred in service if manifested to a degree of 10 percent or more within one year of service separation, the absence of any findings of the disease during service notwithstanding. 38 C.F.R. §§ 3.307, 3.309. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim. The veteran prevails in either of those two events. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon a review of the record, the Board finds that service connection for a skin disorder, diabetic retinopathy, and high cholesterol must be denied. A claim for service connection requires evidence of a current disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Skin Disorder With respect to the veteran's claim for service connection for a skin disorder, he contends that he suffers from a rash that initially manifested in service. Service medical records show that he complained of a rash in the groin area in August 1966, which was confirmed upon physical examination. In April 1967, he was treated for a rash or fungus on the anterior portion of his right thigh which had become progressively larger. He noted that it itched but was not painful and it was diagnosed as possible tinea corporis. However, his March 1969 separation examination indicated that his skin and lymphatics were normal, suggesting that the previously-noted rashes were acute and transitory rather than chronic in nature. Post-service VA records show that the veteran reported a past medical history of a skin rash in March 2004, although no rash was noted at the time. In an April 2004 dermatology consultation, he claimed that the rash, which he described as asymptomatic water "blisters" that manifest on his lower legs and thighs, had been present since his period of active duty service and that he tried to treat it with various topical creams without success. There were no skin lesions present at the time. The clinical assessment was possible insect bites. He was instructed to follow-up when active lesions were present. The evidence does not show any additional follow-up during a time of active lesions but the veteran's active problems list included, among other things, "skin diseases, vesiculobullous." The veteran was afforded a VA skin examination in July 2007, but the examiner found no evidence of current dermatitis upon physical examination and was therefore unable to determine whether the claimed skin condition was related to any previous diagnosis in the medical records without resorting to speculation. As of the July 2007 examination, the veteran had not been seen by a physician for the condition in two years. While a skin disorder is noted on the clinical records, there is no objective evidence of a skin disorder. Even though the veteran was instructed to return for active lesions, he had not done so, despite on-going medical treatment for other disorders. This tends to weigh against his statements that the rash appears once or twice a month. Without an objective showing of a skin disorder, the appeal must be denied. Diabetic Retinopathy With respect to the claim for diabetic retinopathy, the veteran claims that he suffers from "eye problems" as a result of his service-connected diabetes. However, he was afforded a VA eye consultation in March 2003 which found his eyes to be normal. Specifically, it was determined that he did suffer from background diabetic retinopathy. As no current diagnosis is shown, the appeal is denied. High Cholesterol With respect to the claim for high cholesterol, VA treatment records reveal findings of hyperlipidemia since 2001. However, service connection may only be granted for current disability; when a disability is not shown, there may be no grant of service connection. Regardless of whether the veteran had high cholesterol in service or whether he has it now, service connection is granted only for disability. See 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In essence, high cholesterol or high lipid levels as laboratory findings only are not productive of disability. The veteran has undergone an extensive work-up of his high lipid levels but no definitive diagnosis has been offered. Furthermore, as noted by the Court, "this definition comports with the everyday understanding of disability, which is defined as an 'inability to pursue an occupation because of physical or mental impairment'." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In this case, there are abnormal findings, but no competent evidence has suggested the presence of a disability as defined in Hunt. Absent a showing of disability, the appeal must be denied as a matter of law. With respect to the above claims, the Board has considered the veteran's statements that he had experienced the disorders since service and acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the veteran's reported history of continued problems since active service is inconsistent with the objective evidence of record reflecting no current diagnoses. Therefore, the Board finds that veteran's statements of no probative value on the issue of continuity. For these reasons, the Board finds that service connection for a skin disorder, diabetic retinopathy, and high cholesterol must all be denied due to lack of evidence of a current disability. Hypertension With respect to the veteran's claim for service connection for hypertension, he contends that the condition is secondary to his service-connected diabetes mellitus. The Board observes that a blood pressure reading is considered to be above normal when the systolic reading is 140 millimeters (mm.) of mercury (Hg) or greater or the diastolic reading is 90 mm. Hg or greater, usually designated as 140/90. Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, Note 1. The veteran's service medical records indicate that his blood pressure was measured to be 114/84 mm. Hg at the time of his March 1969 separation examination, with his heart and vascular system found to be normal. Therefore, neither hypertension, nor any symptoms reasonably attributable thereto, was shown in service. Post-service medical records do not reflect a diagnosis of hypertension until 1993, 23 years after separation from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As a result, the evidence does not show that the veteran's current diagnosis of hypertension had its onset in service or for many years after separation. Next, service connection may be granted when a medical nexus is established between the claimed disorder and military service. To that end, no health care provider has established such a relationship. Therefore, the evidence does not support service connection on the basis of medical nexus. Significantly, the veteran himself does not claim to have been diagnosed with hypertension until many years after separation from service. However, the thrust of his argument is that hypertension manifested secondary to his service- connected diabetes mellitus. In fact, entitlement to service connection for diabetes mellitus was established in a May 2004 rating decision. The veteran's post-service medical records indicate on-going treatment for hypertension since 1993. However, he was not diagnosed with type II diabetes mellitus until 2001, eight years following the initial hypertension diagnosis. In addition, no opinion relating the veteran's diagnosis of hypertension to his service-connected diabetes mellitus is found in a review of his medical records. As there is no nexus opinion of record, the Board finds that service connection for hypertension, on either a direct or secondary basis, is not in order. The Board has also considered the veteran's statements asserting a relationship between his hypertension and service-connected diabetes mellitus. 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 later 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 Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Therefore, his statements as to a nexus between service- connected diabetes mellitus and hypertension are found to be not probative to the issue of causation. 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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). 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. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in November 2003, January 2004, and March 2004 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. 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 July 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, 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 all 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. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The RO has obtained service medical records and VA treatment records. The veteran submitted various written statements. In addition, he was afforded a VA skin examination in July 2007. However, he was not afforded examinations relevant to his remaining claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military 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). In this case, as there is no current diagnosis of diabetic retinopathy or an underlying condition associated with the veteran's high cholesterol, the Board finds that there is not competent evidence of a current disability or persistent or recurrent symptoms of a disability. With respect to the veteran's claim for hypertension as secondary to diabetes mellitus, the Board finds that there is no indication that the disability may be associated with the veteran's service- connected diabetes because the hypertension diagnosis preceded the diabetes diagnosis by eight years. As such, a VA examination for these claims is not warranted. 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 to the veteran is required to fulfill VA's duty to assist in the development of the claim. 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 Service connection for a skin disorder is denied. Service connection for diabetic retinopathy is denied. Service connection for high cholesterol is denied. Service connection for hypertension is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs