Citation Nr: 0812542 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-12 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for heart disease, to include as secondary to service connected diabetes mellitus. 2. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus. 3. Entitlement to service connection for sleep apnea, to include as secondary to service connected diabetes mellitus. 4. Entitlement to service connection for chronic obstructive pulmonary disease, to include as secondary to service connected diabetes mellitus. 5. Entitlement to service connection for a thyroid disorder, to include as secondary to service connected diabetes mellitus. 6. Entitlement to an evaluation in excess of 20 percent disabling for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied service connection for hypertension, congestive heart failure, and sleep apnea. That decision also granted service connection for diabetes mellitus and assigned a 10 percent rating. In a March 2003 rating decision, the RO changed the initial evaluation for diabetes mellitus to 20 percent, effective in May 2001. In March 2006, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC. to obtain additional evidence, afford the veteran VA examinations, and obtain relevant medical opinions. One of the questions that remand asked the examiner to address was whether the veteran's diabetes mellitus requires regulation of activities, defined as avoidance of strenuous activities. In Stegall v. West, 11 Vet. App. 268 (1998), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims and hereinafter, the Court) held that a veteran has a right to compliance with orders specified in a remand from the Board. In an Informal Hearing Presentation, dated in March 2008, the veteran's representative argued that the medical opinion obtained pursuant to the May 2006 Remand did not comply with the Remand because the examiner failed to state whether the veteran's diabetes mellitus requires "regulation of activities". Given the decision below, even assuming, without deciding, that there was the asserted noncompliance under Stegall, such noncompliance is without any effect and the representative's argument now goes to a moot point. The Board finds below that the veteran's diabetes mellitus does require regulation of activities and that all requirements for a 40 percent rating were met as of January 2004, the date of the first evidence that the veteran's diabetes mellitus required insulin. Because the examiner's opinion as to "if" and when the veteran's diabetes required regulation of activities could not now benefit the veteran, another remand is not indicated. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In March 2008, the veteran, through his representative, asserted claims of service connection for peripheral neuropathy and erectile dysfunction. These matters are referred to the RO for appropriate action The issues of entitlement to service connection for chronic obstructive pulmonary disease and a thyroid disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran's heart disease did not have onset during active service or within one year of separation from active service, is not caused or aggravated by his service-connected diabetes mellitus, and is not otherwise etiologically related to his active service. 2. The veteran's hypertension did not have onset during active service or within one year of separation from active service, is not caused or aggravated by his service-connected diabetes mellitus, and is not otherwise etiologically related to his active service. 3. The veteran's sleep apnea did not have onset during active service, is not caused or aggravated by his service- connected diabetes mellitus, and is not otherwise etiologically related to his active service. 4. The veteran's diabetes mellitus has required a restricted diet, regulation of activities and insulin since January 2004. 5. Prior to January 2004, the veteran's diabetes mellitus did not require insulin. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007). 4. Prior to January 2004, the criteria for an evaluation in excess of 20 percent disabling for diabetes mellitus were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2007). 5. Since January 2004, the criteria for an evaluation of 40 percent disabling, but no higher, for diabetes mellitus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including cardiovascular disease and hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the nonservice-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's nonservice-connected disability by a service- connected disability, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2007). 38 C.F.R. § 3.310, the regulation which governs claims for secondary service connection, has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006). Since VA has been complying with Allen since 1995, the regulatory amendment effects no new liberalization or restriction in this appeal. The veteran contends that his diabetes mellitus has either caused or aggravated his hypertension, heart disease, and sleep apnea. At the outset the Board notes that the record contains conflicting medical opinions. This includes the opinion of the veteran. A resume submitted by the veteran in October 2004 shows that he was employed as an emergency medical technician in 1970 and 1971. Because the veteran has worked as a medical professional, the Board treats his opinion as to medical matters as competent evidence. See Pond v. West, 12 Vet. App. 341, 345 (1999). While his opinion is competent evidence, the Board may consider that the veteran's interest in the outcome affects the credibility, and hence the probative value, of his opinion. Id. (citing Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) for the holding that while interest in the outcome of a proceeding "may affect the credibility of testimony, it does not affect competency to testify"). In cases where there are conflicting statements or opinions from medical professionals, it is within Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Court stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Private treatment notes from "L.K.", M.D., the veteran's cardiologist, show that the veteran was diagnosed with congestive heart failure and atrial fibrillation in April 1999. Dr. L.K. remarked that the veteran possibly had underlying ischemic heart disease and possible out of hospital acute myocardial infarction. Also of record is a discharge summary from the Lexington Medical Center, signed by Dr. L.K. Discharge diagnoses were chronic obstructive pulmonary disease, dilated cardiomyopathy, history of congestive heart failure, hypertension, and chronic atrial fibrillation. As a disposition, Dr. L.K. stated that the veteran was discharged with instructions for a low sodium, low fat diet, with exercise as tolerated. An April 1999 discharge summary from the Lexington Medical Center includes that the veteran underwent cardiac catheterization which showed an ejection fraction of 30 percent and normal coronary arteries. That summary included relevant diagnoses of congestive heart failure, nonischemic cardiomyopathy, and atrial fibrillation. This document makes no mention of diabetes mellitus. June 1999 treatment notes signed by "M.C.M.", M.D. state an impression of obstructive sleep apnea following a sleep study. September 2000 notes from Internal Medicine Associates contain an assessment of diabetes mellitus. April 2001 notes from this practice, listing a physician "K.S.", M.D., state that the veteran had symptoms related to his congestive heart failure, chronic obstructive pulmonary disease and continued to smoke one-half pack of cigarettes per day. Sleep apnea is also listed as a condition from which the veteran suffers. This note stated that the veteran had no symptoms related to his diabetes mellitus and that his diabetes was well controlled, providing evidence against his claim. Of note is that after listing his heart and pulmonary disorders, the Internal Medicine Associates notes referred to the veteran's tobacco use, at least implying an etiological relationship Although acknowledging that the veteran has diabetes mellitus, the notes are absent for even an implied relationship between his diabetes mellitus and the other disorders. In this context, these notes are some limited evidence against the veteran's claim that his heart disease and sleep apnea are caused or aggravated by his diabetes mellitus. Similarly, December 2000 notes from the South Carolina Heart Center, signed by the "M.B.", M.D., a cardiologist, provides evidence that the veteran's heart disease is unrelated to his diabetes mellitus. These notes list the following as separate diagnoses: Acute viral illness; chronic obstructive pulmonary disease, continues to smoke cigarettes; history of hypertension and nonischemic dilated cardiomyopathy with an ejection fraction of 30 percent; chronic atrial fibrillation; and diabetes mellitus, type II, obesity. That the cardiologist listed the veteran's obesity as part of the diagnosis of diabetes mellitus and listed his cigarette smoking with chronic obstructive pulmonary disease, while listing his other diseases as separate entries, is found to be additional limited evidence that the veteran's diabetes mellitus is not etiologically connected to his heart disease. Simply stated, this grouping shows that the cardiologist considered the veteran's chronic obstructive pulmonary disease to be related to his cigarette use and, significant to the issue before the Board, considered there to be a connection between the veteran's diabetes mellitus and his obesity. This also supports the opinion rendered by a VA physician in April 2007, as explained further along in this decision. In October 2001, the veteran underwent a VA examination with regard to his diabetes mellitus. During the examination, he related a history of diagnoses of diabetes mellitus over the past two years, and hypertension for the past three years. He also reported that he suffered from congestive heart failure and atrial fibrillation. That examiner stated that the veteran's claims file was not available for review. In that history section, the examiner stated that the veteran was following a low sodium, low cholesterol and low sugar diet and that his activities were not restricted, providing more evidence against this claim. He also reported that the veteran was working at that time "but could not walk too long because of his heart and breathing problems. He gets short of breath." This examiner provided diagnoses including non-insulin dependent diabetes mellitus, hypertension, and atrial fibrillation. Also submitted by the veteran is the report of a January 2003 office visit to Dr. L.K. in which this cardiologist stated "[h]e has a nonischemic cardiomyopathy which in part likely is due to his diabetes mellitus." (emphasis added). Dr. L.K.'s statement is favorable to the veteran's claim as to heart disease secondary to diabetes. However, the statement is of little probative value as it is merely a conclusion expressed in a single short sentence, lacking any rationale or detail. See Gabrielson, supra; see also Prejean, supra. In statements dated in April 2003 and March 2004, the veteran argued that findings from medical literature provided evidence that diabetes can cause and is normally associated with other medical conditions. Submitted with this argument is a document with the heading "VA Internet Research Information" that appears to contain the text of an article entitled "In Denmark Heart Failure Developed in >50% of Patients with Diabetes Who Had an MI in 1979-1983, and Only 2% of Those Survived 10 Years". He also referred to selective summaries of other articles and statements of health organizations that he had included with his claim. The veteran argued that the RO denied his claims for secondary service connection on the essentially "simplistic" basis that his other medical disorders were diagnosed prior to diagnosis of diabetes, stating that this was not a logical or medically sound reason to find that his diabetes had not caused these disorders. Rather, he proposed that the evidence submitted with his claim supported his view that his diabetes was causing damage to other physiological systems even before the diabetes is diagnosed, and, hence, that service connection was warranted for his disorders claimed as secondary to his diabetes. Simply stated, he contends that an undiagnosed diabetes condition caused the problems at issue. It is important to note that the veteran was undergoing treatment for several disorders for a period of time and no health care provider diagnosed the veteran with diabetes until after he was diagnosed with the problems that he alleges were caused by the diabetes. Such facts are found to clearly provide evidence against this claim. The RO's argument, while perhaps, "simplistic", is also valid. The Board affords the veteran's opinion little probative value. Most importantly, the veteran's interest in the outcome results in a strong bias that impacts negatively on the credibility of his opinion. Further, and most importantly, the Board finds that the veteran's theory makes little sense. The veteran's opinion is untenable in that he says little more than that if a person has heart disease, hypertension or sleep apnea, and is ever diagnosed with diabetes, the diabetes likely caused the other conditions. This argument leads inexorably to the conclusion that all veterans who have service connected diabetes, and have been diagnosed at some point with heart disease, hypertension and/or sleep apnea are due compensation for these additional disorders. Particularly in light of the veteran's clear medical history, the Board finds that the veteran's theory of essentially reverse causality is entitled to very limited probative weight, clearly outweighed by the post-service medical records which are found to provide evidence against these claims. The only evidence favorable to the veteran's claims that his hypertension and sleep apnea are related to his diabetes is the veteran's unsupported conclusion that this is so. For the reasons stated above, this opinion, to the extent that it is an opinion and not merely a restatement of his claim, is afforded little probative value. In April and May 2007, the veteran again underwent VA medical examinations regarding his claims on appeal. These examinations were conducted by two different physicians, "B.M.", M.D. in April, and "T.L.", M.D., in May. Both examiners indicated that they had reviewed the veteran's claims file. Dr. B.M. recounted the veteran's history of diagnosis of diabetes mellitus in 2000, nonischemic congestive heart failure and atrial fibrillation in April 1999, and obstructive sleep apnea in 1999. He remarked that the record showed the veteran to have elevated blood pressures in 1998 but that he was not placed on medication until discharge from the hospital for the cardiomyopathy in 1999. The examiner opined that it is less likely than likely that the veteran's heart disease, hypertension and sleep apnea were the result of, caused, or aggravated by the veteran's service connected diabetes. As a rationale for that opinion, this examiner stated that the veteran's: diabetes was not evident until approximately the year 2000. He was admitted for congestive heart failure in 1999. This was classified a nonischemic cardiomyopathy by catheterization showing normal coronary arteries, and a large majority of dilated cardiomyopathy is idiopathic. Typical cardiomyopathy caused by diabetes is ischemic in nature, though rarely long standing uncontrolled diabetes can lead to other types of cardiomyopathy, but again does not fit the time line in this veteran's case. Dr. T.L. also detailed the date of diagnosis of the veteran's heart disease and diabetes and provided an opinion as to whether the veteran's heart disease was related to his diabetes. In so doing, Dr. T.L. addressed the opinion of the veteran's cardiologist, Dr. L.K., discussed above, and the references to scientific literature contained in the veteran's claims file. In offering his opinion as to any relationship between the veteran's sleep apnea and his diabetes, Dr. T.L. stated that he was unaware of any scientific evidence directly linking obstructive sleep apnea with diabetes mellitus. He stated that the two conditions can coexist in an overweight individual, but that there is no cause and effect relationship. He thus opined that it is less likely than not that the veteran's sleep apnea is secondary to his diabetes. As to the relationship between the veteran's heart disease and diabetes, Dr. T.L. provided a detailed and thorough opinion that the veteran's heart disease was not secondary to his diabetes. Dr. T.L. specifically addressed the arguments that the relative timing of diagnosis of these diseases was irrelevant and he specifically addressed the statement of the veteran's cardiologist. Additionally, in addressing the veteran's arguments, Dr. T.L. provided that while there can be a long period of insulin resistance that progresses from impaired glucose tolerance to overt diabetes mellitus, it is unlikely that a patient with a prediabetic condition would develop such a severe end-organ or macrovascular disease as nonischemic cardiomyopathy. He noted that at the time that the veteran developed cardiomyopathy and atrial fibrillation, his glucose levels were still normal. Dr. T.L. stated that that a person with insulin resistance would experience improvement or possibly resolution of elevated blood pressure and diabetes with weight reduction. He explained that if the veteran does have insulin resistance, it is secondary to being overweight rather than loss of pancreatic beta cell function. The Board notes that the claims file contains numerous statements that the veteran is obese. In addressing Dr. L.K's statement that the veteran's cardiomyopathy "is in part most likely" secondary to diabetes mellitus, Dr. T.L. found it significant that Dr. L.K. had never previously linked the veteran's cardiomyopathy to diabetes and questioned the ambiguous phrase "in part" used by Dr. L.K. Dr. T.L. remarked that he did not see this as a definite statement of cause and effect, but rather that Dr. L.K. had couched his statement in terms of possibilities. He concluded that the veteran's nonischemic cardiomyopathy was not secondary to his diabetes mellitus. The Board finds this opinion highly probative. Dr. T.L. specifically and logically addressed the veteran's arguments and Dr. L.K.'s statement. He also provided a detailed explanation as to why the veteran's case did not fit into the proffered scenario involving damage from prediagnosed diabetes. Moreover, Dr. T.L.'s observation that the language employed by the veteran's cardiologist is one of possibilities is well taken. Indeed, language such as "in part" fits Dr. L.K.'s statement in with speculative medical opinions that have previously found to be incapable of supporting a grant of service connection. In Bloom v.West, 12 Vet. App. 185 (1999), the Court found unpersuasive the unsupported physician's statement that the veteran's death "could" have been caused by his time as a prisoner of war. In Stegman v. Derwinski, 3 Vet. App. 228 (1992), the Court held that evidence favorable to the veteran's claim that did little more than suggest a possibility that his illnesses might have been caused by service radiation exposure was insufficient to establish service connection. Similarly, in Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the Court found that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship. Dr. T.L.'s and Dr. B.M.'s opinions employed clear and logical reasoning, were detailed and thorough, and the Board finds the opinions highly probative for these reasons. Based on the above, the Board finds that the medical opinions expressed by the April and May 2007 VA medical examiners are more probative than the opinions expressed by the veteran and Dr. L.K as to a relationship between the veteran's diabetes mellitus and the disorders he claims as either caused or aggravated by the diabetes mellitus. Hence, the preponderance of the evidence is against the veteran's claims for service connection for these disorders on a theory of secondary service connection. The Board has not ignored the argument presented by the veteran's representative in the January 2008 Informal Hearing Presentation. In that document, the representative disagreed with that portion of the VA examiner's opinions that the veteran's diabetes did not aggravate his other claimed conditions. Specifically, the representative took issue with the remarks going to the timing of the diagnoses of the various disorders. The Board finds that this argument is without merit. Based on the above, the Board finds that the medical opinions unfavorable to the veteran's claims, as well as the clinical record, outweigh the evidence offered as favorable to his claims. Hence the preponderance of the evidence is against his claims for entitlement to service connection for heart disease, hypertension, and sleep apnea as secondary to diabetes mellitus and these claims must be denied. Also considered by the Board, and by the RO, is whether service connection is warranted for these disorders as directly related to the veteran's active service. Review of the veteran's service medical records show no reports of sleep apnea or evidence of high blood pressure, hypertension, or heart disease. A July 1970 separation report of medical examination includes a normal clinical evaluation of the veteran's heart and vascular system. Blood pressure measurements were 130/84 sitting, 124/74 recumbent, and 130/80 standing. In an associated report of medical examination the veteran indicated that he did not then have nor had ever had high or low blood pressure or, palpitation or pounding heart. This is strong evidence that the veteran did not have sleep apnea, heart disease, or hypertension during service. There is no evidence to the contrary. Post-service, there is no report of hypertension, heart disease, or sleep apnea until 1998 at the earliest, almost three decades after separation from service. This is more evidence that the veteran's heart disease, hypertension and sleep apnea did not have onset during service, and precludes application of the presumptive provisions for cardiovascular disease and hypertension. Nor is there any other evidence or opinion that these disorders are related directly to the veteran's service. Therefore, since all evidence of record is against awarding service connection for these claimed disorders on a direct theory of entitlement, his claim must also be denied on that basis. In summary, the preponderance of the evidence is against the veteran's claims for service connection on any theory of entitlement and hence his claims must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Increased rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). This claim for an evaluation higher than that assigned by the RO originated from the RO decision that granted service connection for that disability. In such claims, ratings can be assigned for separate periods of time based on the facts found, a practice referred to as assigning "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for diabetes mellitus was established by a rating decision dated in May 2002. In a rating decision from March 2003, the RO assigned a 20 percent evaluation for the veteran's diabetes mellitus, effective in May 2001, the date that diabetes mellitus was afforded the presumption for service connection based on exposure to an herbicide agent during service, the basis for the grant of service connection in this case. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. 38 C.F.R. § 4.119. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Id. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Id. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. Note (2) provides that, when diabetes mellitus has been conclusively diagnosed, the adjudicator is not to request a glucose tolerance test solely for rating purposes. 38 C.F.R. § 4.119. Evidence going to the applicable criteria for evaluating the veteran's diabetes mellitus includes VA outpatient notes and the VA examinations already discussed in the section addressing his claims for entitlement to service connection. To the extent necessary, the Board includes additional portions of those examination reports that are relevant to his claim for a higher evaluation but were not relevant to his claims for service connection. An October 2001 VA clinic note contains a section for physical activity screening and counseling. In that section, the clinician wrote that the veteran had been informed of the benefits of regular exercise. Also listed is the statement that physical activity is contraindicated for this veteran due to his medical condition. No particular medical condition is listed as the reason for the contraindication. VA clinic notes since October 2001 continue to show this contraindication. This is evidence of regulation of the veteran's activities, and in that sense, evidence favorable to assigning a higher rating for the veteran's diabetes mellitus. Of note is that the reason for the stated contraindication is unclear (i.e. whether his heat disease and chronic obstructive pulmonary disease formed led to the contraindication as opposed to or in conjunction with his diabetes mellitus). The October 2001 VA examination report contained a veteran provided history that he had not been hospitalized for ketoacidosis or hypoglycemia, but that he was following a restricted diet for his diabetes. This history also stated that the veteran was still working but that he was unable to walk "too long" because of his heart and breathing problems, remarking that the veteran experienced shortness of breath with such activity. The examiner stated that the veteran saw his primary care physician every three months. An assessment included non-insulin dependent diabetes mellitus. This is evidence that the veteran's diabetes has required a restricted diet since October 2001. This is also evidence that the veteran's heart and lung disorders contribute to his restricted ability to engage in physical activity. Contained in the report of a January 2003 office visit to the veteran's cardiologist, is a history section in which Dr. L.K. stated that the veteran "has limitations in his physical activity and ability to really work productively secondary to his underlying cardiovascular condition and chronic obstructive pulmonary disease and diabetes mellitus." In an assessment section of that document, the cardiologist remarked on the veteran's plan to retire, stating that this would be of benefit to the veteran given his multiple medical problems. Because Dr. L.K listed diabetes as one of the conditions limiting the veteran's physical activity, this is evidence that as of January 2003 the veteran's diabetes mellitus required regulation of activities. VA clinic notes from January 2004 document that the veteran was beginning insulin treatment for his diabetes. VA clinic notes also show that, in March 2006, treatment included insulin every morning and every evening. This evidence shows that the veteran's diabetes mellitus has required insulin since January 2004. In the April 2007 VA examination report, the examiner recounted the veteran's history, including that the veteran had not been hospitalized for ketoacidosis. He recorded the veteran's report that he had hypoglycemic reactions once or twice a week but that this frequency varied. The veteran was following a restricted diet for his diabetes and saw his diabetic care provider approximately every three months. He denied history of stroke, nephropathy, peripheral vascular disease, and diabetic retinopathy, although he did report peripheral neuropathy. The examiner reported that the veteran had an eighty pack per year smoking history and did report some chest pain and shortness of breath. He also reported that the veteran was not currently employed and that the veteran denied any effects on his activities of daily living related to diabetes. This account of the veteran's is some limited evidence against a finding that the veteran's diabetes mellitus requires restriction of activities. Clearly, the veteran's diabetes requires insulin and a restricted diet. There is doubt that his diabetes requires restriction of activities, however considering all the evidence of record, the Board finds that the evidence as to that criterion is in equipoise. Statute, regulation, and caselaw require this reasonable doubt be resolved in the veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Thus, the Board finds that all criteria for a 40 percent rating have been met since January 2004; the date of the first evidence that the veteran's diabetes required insulin. Importantly, the Board notes that there is significant evidence against the Board's decision that the veteran warrants a 40 percent evaluation for this condition and it may be found in future examinations of the veteran's condition that a 40 percent evaluation is not warranted (based on a finding that the veteran's activities are limited by his nonservice connected disorders, and not his service connected condition, or some other factor). However, at this time, there is sufficient ambiguity to warrant a 40 percent evaluation of this condition. The Board now turns to whether a rating higher than 40 percent is warranted since January 2004. The next higher rating, 60 percent, requires, in addition to other criteria, that the veteran's diabetes mellitus to have resulted in ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic car provider. The evidence described above affirmatively demonstrates that the veteran has not required any hospitalizations for his diabetes mellitus and sees his diabetic care provider only every three months. This is strong evidence that these criteria for a higher rating have not been met. There is no evidence to the contrary. Hence, a rating higher than 40 percent is not warranted. Because the veteran has argued that he cannot work due to his various health problems, the Board has considered whether referral for extraschedular consideration is warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2007). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). This case does not warrant referral for extraschedular consideration. The veteran has not required any periods of hospitalization for his diabetes mellitus. Although the veteran asserts that his health precludes working in his chosen profession and has thus had to retire, he has offered no objective evidence of this. Furthermore, there is no evidence that his diabetes mellitus caused his retirement, as opposed to his many other nonservice connected disorders. Furthermore, there is no evidence that his diabetes mellitus interferes with his ability to engage in employment other than the field from which he retired. That a service connected disability causes difficulty with employment is contemplated by the rating schedule. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence does not present such exceptional circumstances to find that the veteran's disability picture is not appropriately rated under the schedular criteria. The Board finds that the post-service medical record, as a whole, provides evidence against such a finding. For these reasons, the Board declines to refer his case for extraschedular consideration. In conclusion, the veteran diabetes mellitus warrants a 40 percent evaluation, but no higher, since January 2004. To that extent, his claim must be granted. The preponderance of the evidence of record is against assigning the 40 percent rating earlier than January 2004, assigning a higher rating for any period of time, or referring the veteran's claim for extraschedular consideration. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from VA 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; (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). 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 Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letters sent to the veteran in October 2001, May 2003, and May 2006, that fully addressed all four notice elements. The October 2001 letter was sent prior to the initial RO decision in this matter. This letter listed diabetes mellitus, congestive heart failure, sleep apnea, and high cholesterol, along with a number of other disabilities claimed by the veteran as due to his service. Although this letter did not specifically list hypertension, the veteran's claim included blood pressure problems listed along with congestive heart failure, atrial fibrillation, abnormal rhythm, and valve malfunction. These conditions were listed as one of 14 entries. Because the letter was tailored to the form of the veteran's claim, the Board finds that the October letter properly complied with the VCAA, including as to the veteran's claim regarding high blood pressure. This letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the RO. In this case, the duty to notify with regard to assignment of disability ratings and effective dates for claims for service connection was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post- decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The VCAA duty to notify was satisfied subsequent to the initial RO decision by way of the letter sent in May 2006. That letter informed the veteran of what evidence was required to substantiate the claims as to all elements, including assignment of disability ratings and effective dates, and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a supplemental statement of the case issued in October 2007, after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The Board is aware of the Court's recent clarification of VCAA notice required for increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, although the issue before the Board is whether the veteran's diabetes mellitus is properly rated, the appeal arises from a claim for entitlement to service connection, not an increased rating claim. See Fenderson v. West, 12 Vet. App. 119, 125 (1999) (explaining that a disagreement with an initial rating assigned for a disability following a claim for service connection is part of the original claim and technically not a claim for an increased rating). VCAA notice is triggered by receipt of the claim, or application, for benefits. 38 U.S.C.A. § 5103(a). In Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated section 5103 (a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the veteran's claim). From this statement, it follows that the notice requirements triggered by VA's receipt of a claim to establish service connection, such as in the instant case, differs in content from notice in response to a claim seeking a higher evaluation for a disability for which service connection has already been established. In Wilson, the Federal Circuit specifically rejected the argument that section 5103(a) notice requirements were altered by the filing of a notice of disagreement. Id. at 1058-1059. In the instant case, VCAA notice requirements were satisfied because the RO provided the veteran with the notice applicable to a claim to establish service connection. Furthermore, to the extent that any deficiencies in notice remain as to either the assignment of disability ratings for diabetes mellitus or the requirements for a claim for service connection based on a theory of secondary service connection, the Board finds that the veteran has demonstrated actual knowledge in these respects; indeed a far greater knowledge than likely could have been provided by preadjudicatory notice. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (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. Although not specifically discussed by the Court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. As discussed in the substantive section of this decision, the veteran has presented in depth argument based directly on the rating criteria for diabetes mellitus. In that regard, his statements dated in April 2003 and March 2004 contain specific references to the applicable criteria. Similarly, the veteran and his representative have argued the particulars of a claim based on secondary service connection, even so far as to make distinctions between aggravation of a non service connected disorder by a service connected disorder as well as causation. Hence, in this case, any notice error is harmless error because the veteran has demonstrated actual knowledge of that which the notice would have provided. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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 VA outpatient treatment records. The veteran submitted private treatment records including records from "L.K.", M.D.; "K.S.", M.D.; "C.M.", M.D.; "W.B.", M.D.; "M.K.", M. D.; "G. S.", M.D.; the Lexington Medical Center; and the South Carolina Heart Center. Appropriate VA medical examinations were afforded the veteran in October 2001 and April 2007 and necessary medical opinions were obtained. Significantly, neither the appellant 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 claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant 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 heart disease is denied. Service connection for hypertension is denied. Service connection for sleep apnea is denied. An evaluation of 40 percent disabling, but not higher, for diabetes mellitus is granted, effective January 2004. REMAND One of the matters the Board must address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a) (West 2002), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (2007). In the May 2002 rating decision, the RO denied service connection for chronic obstructive pulmonary disease and a thyroid disorder. In a VA Form 9 received in December 2002, the veteran not only perfected appeals as to other issues, but also expressed disagreement with the denial of service connection for chronic obstructive pulmonary disease. Similarly, in a letter received in April 2003, the veteran disagreed with the RO's denial of service connection for a thyroid disorder. The Board is aware that the veteran has argued that the decision as to his thyroid disorder was incorrect based on his belief that service connection is warranted as secondary to diabetes mellitus. In view of a recent decision by the Federal Circuit, the veteran's April 2003 statement should be taken as a notice of disagreement with the RO decision rather than as a new claim based on a different theory of entitlement. In Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008), the Federal Circuit stated "a new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under § 7104(b)." Although that particular issue was not before the Federal Circuit in Boggs, and thus the Federal Circuit's statement could be viewed as non-binding dicta, the Board finds in the instant case that the position most favorable to the veteran is to consider that April 2003 statement by the veteran as a notice of disagreement with the May 2002 denial of his claim for entitlement to service connection for a thyroid disorder. A statement of the case has not yet been issued with regard to either of these notices of disagreement. See 38 U.S.C.A. § 7105(d)(1). Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: Issue the veteran a statement of the case with regard to the May 2002 decision that denied service connection for a chronic obstructive pulmonary disease and a thyroid disorder. Of note is that the veteran has argued that these disorders are related to his diabetes mellitus as well as directly related to his active service. Inform the veteran of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, return this issue to the Board only if (and only if) an adequate and timely substantive appeal is filed. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2007). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs