Citation Nr: 0812950 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-22 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES Entitlement to a compensable rating for service-connected tension headaches. Entitlement to a higher initial rating for service-connected paresthesia of the right knee and lower leg, currently evaluated as 10 percent disabling. Entitlement to service connection for erectile dysfunction. WITNESSES AT HEARING ON APPEAL Appellant and his wife. ATTORNEY FOR THE BOARD Mark Vichich, Associate Counsel INTRODUCTION The veteran served on active duty from October 1983 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2007; a transcript is of record. The issue of entitlement to a compensable rating for service- connected tension headaches is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran's service-connected paresthesia of the right knee and lower leg is manifested by constant numbness and loss of sensation from the knee to the big toe. 3. The competent lay evidence establishes that the veteran's erectile dysfunction began during his active duty service. CONCLUSIONS OF LAW 1. The schedular criteria for an initial rating of 20 percent for service-connected paresthesia of the right knee and lower leg have been approximated. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.124a, Diagnostic Code 8520 (2007). 2. Erectile dysfunction was incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (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). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). For an increased-compensation claim, VCAA requires, at a minimum, that VA notify the claimant that the evidence demonstrates a worsening or increase in severity of the disability and the effect that worsening has on the veteran's employment and daily life. Vazquez-Flores v. Peake 22 Vet. App. 37 (2008). The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The Board finds that VA has no further duty to notify prior to Board adjudication. The AOJ provided notice to the veteran in correspondences dated in October 2006 and January 2007. In the October 2006 correspondence, the RO advised the veteran of what the evidence must show to establish a disability rating and effective date for a service-connected disability. Specifically, the RO notified the veteran that VA considered the nature and symptoms of the condition, severity of the condition, and impact of the condition and symptoms on employment. The RO explained that treatment records, Social Security Administration (SSA) determinations, and statements from employers or others describing the how the veteran's disability affected him and his job performance were relevant in determining a disability rating. The Board finds this letter satisfies the notice requirements for increased rating claims identified in Vazquez-Flores. In the October 2006 letter, the RO also advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claims, including which portion of the information and evidence necessary to substantiate the claims was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. The RO also essentially requested that the veteran send any evidence in his possession that pertained to the claims, namely by requesting any additional evidence concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In the January 2007 correspondence, the RO specifically identified the issues of entitlement to an increased rating for paresthesia numbness right knee/lower leg and service connection for erectile dysfunction. See Overton v. Nicholson, 20 Vet. App. 427 (2006) (VA must provide notice to a veteran with respect to each claim and failure to specifically notify a veteran with respect to each claim is presumed to be prejudicial error). In the January 2007 correspondence, the RO again notified the veteran of the disability rating and effective date elements and informed the veteran that it was VA's responsibility to obtain federal records and his responsibility to obtain private records. The RO also essentially requested that the veteran send any evidence in his possession that pertained to the claims. The Board finds that together, the October 2006 and January 2007 letters satisfied VA's duty to notify with respect to the increased rating claim. Although the AOJ did not provide fully compliant notice with respect to the increased rating claim until after initial adjudication of the claim, it readjudicated the claim and issued a supplemental statement of the case (SSOC) in June 2007. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board recognizes that in neither the October 2006 nor the January 2007 correspondence did the RO notify the veteran of what the evidence needed to show to establish entitlement to service connection for erectile dysfunction. For this reason, these correspondences are inadequate for VCAA notice purposes with respect to his claim. The Board acknowledges that in a statement of the case (SOC), dated in June 2007, the RO identified an April 2005 VCAA development letter. The Board has thoroughly reviewed the claims file, but failed to locate this letter. Not having the benefit of reviewing this letter, the Board is unable to determine whether it complied with VCAA notice requirements. Despite being unable to conclude the RO has provided the veteran with satisfactory notice, the Board finds no remand is necessary. For reasons explained more fully below, the Board is granting the veteran's claim for service connection in its entirety. Thus, any VCAA notice deficiencies with respect to that claim are not prejudicial. Finally, the Board also finds that the RO has satisfied VA's duty to assist. The RO has obtained the veteran's service medical records. The RO also provided the veteran with a VA examination and obtained medical opinions for the claimed disabilities. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claims. Accordingly, the Board will proceed with appellate review. Increased Rating for Right Leg Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). When the initial evaluation is at issue, the Board must assess the entire period since the original claim was filed to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods since the date the original claim was filed. See Fenderson v. West, 12 Vet. App. 119 (1999). Individual disabilities are assigned separate diagnostic codes. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (2007). The veteran's paresthesia of the right knee and lower leg is rated 10 percent disabling pursuant to Diagnostic Code 8520, for mild paralysis of the sciatic nerve. 38 C.F.R. § 4.124a (2007). A higher rating of 20 percent requires moderate paralysis of the sciatic nerve. A 30 percent rating is assigned when the condition is moderately severe. Id. The Board finds that the evidence supports a 20 percent rating for this disability. The VA examination report, dated in December 2005, was notable for findings of impairment upon conducting sensory examination of the right lower extremity. The examiner described the impairment as "poor-mild sensation of the L-4 nerve distribution (medial aspect of the right leg from the knee to the first toe)." According to the report, the veteran's subjective complaints consisted of numbness from his knee to his ankle going down to right leg to his foot. At the veteran's Travel Board hearing, he testified that his right leg was "constantly numb" from the knee to his big toe. The veteran also testified that this numbness sometimes caused problems walking. The veteran described walking in crowds as problematic because he was unable to maneuver around people or corners. The veteran also described difficulty using the gas and brake pedal when driving. Although the VA examiner described the impairment of sensation as only "mild," the veteran's testimony describing his difficulties, and the examiner's findings that the entire lower right leg was affected, suggests the disability is more severe than contemplated by the 10 percent rating. Considering that all doubt is to be resolved in the veteran's favor, the evidence in this case justifies the higher rating. 38 C.F.R. § 4.3 (2007). The Board declines, however, to grant a 30 percent rating because the medical evidence does not show the condition to be moderately severe. Notably, the VA examination report was negative for any other neurological abnormalities such as motor or sensory impairment. The Board also finds that the 20 percent rating is justified for the entire appeal period. Accordingly, a staged rating is not in order and a 20 percent rating is appropriate for the entire period of the veteran's appeal. Fenderson, 12 Vet. App. at 119. Lastly, the Board notes that there is no evidence of record that the veteran's service-connected paresthesia of the right knee and lower leg causes marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent period of hospitalization, such that application of the regular schedular standards is rendered impracticable. Moreover, the veteran has not raised such an issue. The Board emphasizes that the percentage ratings assigned by the VA Schedule for Rating Disabilities represent the average impairment in earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1 (2007). In the instant case, to the extent that the veteran's service-connected paresthesia of the right knee and lower leg interferes with his employability, the currently assigned ratings adequately contemplates such interference, and there is no evidentiary basis in the record for a higher rating on an extraschedular basis. Hence, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (2007) for assignment of an extraschedular evaluation. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Service Connection for Erectile Dysfunction Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 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 C.F.R. § 3.303(d) (2007). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In certain circumstances, however, lay evidence may be competent to establish a diagnosis. These circumstances include when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Whether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board. Id. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the veteran. Washington v. Nicholson, 19 Vet. App. 363, 369 (2005). The appellant's credibility affects the weight to be given to his testimony, and it is the Board's responsibility to determine the appropriate weight. Id. At the veteran's Travel Board hearing, he testified that his erectile dysfunction began right after he had low back surgery in service around 2000. The veteran maintained that he was able to get only "partial" erections. The veteran stated that his doctors in the service told him it would improve over time, but that it did not. The veteran's wife confirmed the veteran's statements. The veteran's service medical records showed that in April 2002, the veteran underwent an L4-L5 diskectomy. The Board was unable to find any references to erectile dysfunction in any of the follow-up treatment records. Current medical evidence pertaining to this issue is found in a VA examination report, dated in December 2005. In that report, A.P., Physician Assistant, Certified, stated that she could not provide an opinion linking the veteran's erectile dysfunction to his low back surgery without resorting to mere speculation. The Board finds that despite there being no favorable medical nexus opinion of record, the lay evidence substantiates the claim. Based on the nature of this disability, the Board finds the veteran, as a layperson, is competent to diagnosis it. Jandreau, 492 F.3d at 1377. The Board also finds the veteran's and his wife's testimony regarding the onset of this disability to be credible. Their statements were consistent with each other and were not contradicted by any other evidence in the claims file. ORDER A 20 percent rating is granted for service-connected paresthesia of the right knee and lower leg, subject to the law and regulations controlling the award of monetary benefits. Service connection for erectile dysfunction is granted. REMAND In the veteran's notice of disagreement, received in August 2006, the veteran expressed dissatisfaction with the diagnosis of tension headaches found in the VA examination report. The veteran asserted that his disability was a cracking sensation in the neck that resulted in headaches. At the veteran's Travel Board hearing, he essentially maintained that the VA examiner did not consider the relevant circumstances regarding his headaches/neck cracking claim. The veteran described how he often bumped his head on pipes and bent around corners while he served as a missile technician on a submarine. The veteran suggested that these circumstances contributed to his headaches, but were not considered by the examiner. The veteran's service medical records included a report of medical history, dated in May 2005, in which the veteran reported frequent headaches relieved by cracking his neck. In the examiner's summary, the examining physician commented that these headaches were likely tension headaches versus cervical degenerative disc disease. In an ionizing radiation medical examination report, dated in May 2005, Dr. P.S. stated that the veteran had cervical degenerative disc disease causing headaches. It is not clear whether cervical degenerative disc disease was shown by radiological tests, or whether the doctor based such a diagnosis on history only. In the December 2005 VA examination report, the examiner did not comment on whether the veteran's headaches were related to a cervical spine disorder. Given the references to possible degenerative disc disease in the veteran's service medical records, and the veteran's testimony regarding the nature of his headaches, the veteran should be provided with another examination taking these factors into account. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with another VA examination for his neck cracking/headaches claim. The examiner should be instructed to review the entire claims file, including the separation and ionizing radiation medical examination reports dated in May 2005 referring to degenerative disc disease. The examiner should also consider the veteran's statements regarding how he often bumped his head and bent his neck while serving on a submarine. In consideration of this evidence, the examiner should provide an opinion as to whether it is as likely as not that the veteran incurred a disability of the cervical spine manifested by headaches during or as a result of his active duty service. 2. Thereafter, the veteran's claim of entitlement to service connection for an increased rating for service-connected tension headaches should be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs