Citation Nr: 0813479	
Decision Date: 04/24/08    Archive Date: 05/01/08

DOCKET NO.  05-09 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Whether new and material evidence has been presented to 
reopen the claim of service connection for diabetes mellitus.  

2. Whether new and material evidence has been presented to 
reopen the claim of service connection for skin disease.  

3. Entitlement to service connection for diabetic retinopathy 
with macular edema and cataracts in the left eye. 

4. Whether there was clear and unmistakable error in a rating 
decision in April 1996 by the RO, assigning an effective date 
of February 7, 1976, for a total disability rating for 
compensation based on individual unemployability.

5. Entitlement to a rating higher than 60 percent for 
arteriosclerotic heart disease with myocardial ischemia and 
hypertension.  

6. Entitlement to special monthly compensation based on loss 
of vision in the left eye. 

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

ATTORNEY FOR THE BOARD

J. Horrigan 

INTRODUCTION

The veteran, who is the appellant, served on active duty from 
March 1962 to April 1965. 

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of rating decisions, dated in June 2004, in June 
2005, and in December 2006, of a Department of Veterans 
Affairs (VA) Regional Office (RO). 

Under 38 U.S.C.A. §§ 5108, 7105(c) and 38 C.F.R. § 3.104, a 
rating decision by the RO, which has become final, may not be 
reopened unless new and material evidence is presented.  
Regardless of how the RO ruled on the question of reopening, 
the Board must decide the matter on appeal, because reopening 
is a threshold jurisdictional question for the Board.  
Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) 
(reopening after a prior unappealed RO denial).

In November 2007, the Board asked the veteran whether he 
wanted a hearing before a Veterans Law Judge.  As the veteran 
has not responded, the Board will proceed with appellate 
review. 

The claim of service connection for skin disease is REMANDED 
to the RO via the Appeals Management Center in Washington, 
DC.



FINDINGS OF FACT

1. In a rating decision in September 2002, the RO denied 
service connection for diabetes mellitus; after the veteran 
was notified of the adverse determination and of his 
procedural and appellate rights, he did not appeal the rating 
decision and the rating decision became final by operation of 
law based on the evidence of record at the time.  

2. The additional evidence presented since the adverse 
decision in September 2002 by the RO is either cumulative 
evidence or evidence that does not raise a reasonable 
possibility of substantiating the claim. 

3. In a rating decision in June 2002, the RO denied service 
connection for skin disease; after the veteran was notified 
of the adverse determination and of his procedural and 
appellate rights, he did not appeal the rating decision and 
the rating decision became final by operation of law based on 
the evidence of record at the time.  

4. The additional evidence presented since the adverse 
decision in June 2002 by the RO raises a reasonable 
possibility of substantiating the claim of service connection 
for skin disease. 

5. Diabetic retinopathy with macular edema and cataracts in 
the left eye was not affirmatively shown to have had onset 
during service; diabetic retinopathy was not manifested to a 
compensable degree within one year from the date of 
separation from service; and diabetic retinopathy with 
macular edema and cataracts in the left eye, first diagnosed 
after service beyond the one-year presumptive period for a 
chronic disease, is unrelated to an injury, disease, or event 
of service origin or to a service-connected disability.  

6. The rating decision in April 1996, assigning as effective 
date of February 7, 1976, for the grant of a total disability 
rating for compensation based on individual unemployability 
was based on the correct facts, as the facts were known at 
the time, and the law extant at the time was correctly 
applied.  

7. Arteriosclerotic heart disease with myocardial infarction 
and hypertension does not result in chronic congestive heart 
failure, a workload of 3 METs or fewer, or an ejection 
fraction of less than 30 percent. 

8. Loss of vision in the left eye is not due to a service-
connected disability.  


CONCLUSIONS OF LAW

1. The rating decision in September 2002 by the RO, denying 
the claim of service connection for diabetes mellitus, became 
final.  38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2007); 
38 C.F.R. § 3.104(a) (2007).

2. The additional evidence presented since the rating 
decision in September 2002 by the RO is not new and material, 
and the claim of service connection for diabetes mellitus is 
not reopened.  38 U.S.C.A. §§ 5108, 7105(c) 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007).

3. The rating decision in June 2002 by the RO, denying the 
claim of service connection for skin disease, became final.  
38 U.S.C.A. § 7105(c) (West 2002 &Supp. 2007); 38 C.F.R. 
§ 3.104(a) (2007). 

4. The additional evidence presented since the rating 
decision in June by the RO is new and material, and the claim 
of service connection for skin disease is reopened.  38 
U.S.C.A. §§ 5108, 7105(c) (West 2002 & Supp. 2007); 38 C.F.R. 
§ 3.156 (2007).

5. Diabetic retinopathy with macular edema and cataracts in 
the left eye was not incurred in or aggravated by service, 
and diabetic retinopathy may not be presumed to have been 
incurred in service as a chronic disease or as disease 
subject to the presumption of service connection due to 
exposure to Agent Orange.  38 U.S.C.A. §§ 1110, 1112, 1131, 
1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007).  

6. The rating decision in April 1976 by the RO, assigning an 
effective date of February 7, 1976, for the grant of a total 
disability rating for compensation based on individual 
unemployability, did not contain clear and unmistakable 
error. 38 C.F.R. § 3.105 (2007).  

7. The criteria for a rating higher than 60 percent for 
arteriosclerotic heart disease with myocardial infarction and 
hypertension have not been met.  38 C.F.R. § 1155, 5107(b) 
(West 2002 & Supp. 2007); 38 C.F.R. § 4.104, Diagnostic Code 
7005 (2007). 

8. The criteria for special monthly compensation due to loss 
of vision in the left eye have not been met. 38 U.S.C.A. 
§1114(k); 38 C.F.R. § 3.350(a).  


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claims.

Claim of Clear and Unmistakable Error
Claim for Special Monthly Compensation

On the claim of clear and unmistakable error in a rating 
decision in April 1976 by the RO, assigning an effective date 
of February 7, 1976, for a total disability rating for 
compensation based on individual unemployability, the VCAA 
does not apply. Livesay v. Principi, 15 Vet. App. 165, 179 
(2001) (en banc).

On the claim for special monthly compensation for loss of 
vision in the left eye, as the law is dispositive, the VCAA 
does not apply.  Mason v. Principi, 16 Vet. App. 129 (2002).



Duty to Notify

For all the other claims, under 38 U.S.C.A. § 5103(a), VA 
must notify the claimant of the information and evidence not 
of record that is necessary to substantiate the claims, which 
information and evidence VA will obtain, and which 
information and evidence the claimant is expected to provide. 
Under 38 C.F.R. § 3.159, VA must request that the claimant 
provide any evidence in the claimant's possession that 
pertains to the claims.

The VCAA notice requirements apply to all five elements of a 
service connection claim. The five elements are: 1) veteran 
status; 2) existence of a disability; (3) a connection 
between the veteran's service and the disability; 4) degree 
of disability; and 5) effective date of the disability.  
Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In a new and material evidence claim, the VCAA requires 
notice of the evidence and information that is necessary to 
reopen the claim and the evidence and information that is 
necessary to establish the underlying claim for the benefit 
sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).

In a claim for increase, the VCAA notice requirements include 
notice of the type of evidence needed to substantiate a 
claim, namely, evidence demonstrating a worsening or increase 
in severity of the disability and the effect that worsening 
has on the claimant's employment and daily life.  

Also, if the Diagnostic Code under which the claimant is 
rated contains criteria necessary for entitlement to a higher 
disability rating that would not be satisfied by the claimant 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect of that worsening has on the 
claimant's employment and daily life (such as a specific 
measurement or test result), the VA must provide at least 
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).

The VCAA notice must be provided to a claimant before the 
initial unfavorable adjudication by the RO. Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).

New and Material Evidence Claims 

On the claims to reopen, as the Board is reopening the claim 
of service connection for skin disease, the discussion of 
VCAA compliance pertains to the claim to reopen service 
connection for diabetes mellitus only.  The RO provided post-
adjudication VCAA notice by letters, dated in August 2005 and 
in March 2006.  The notice included the type of evidence to 
reopen the claim of service connection for diabetes mellitus, 
namely, new and material evidence, pertaining to the reason 
the claim were previously denied, as well as the type of 
evidence needed to substantiate the underlying claim of 
service connection, that is, evidence showing a current 
disability; evidence of an injury or disease in service or an 
event in service, causing injury or disease; and evidence of 
a relationship between the current disability and the injury, 
disease, or event in service.  The veteran was notified that 
VA would obtain service records, VA records, and records of 
other Federal agencies, and that he could submit other 
records not in the custody of a Federal agency, such as 
private medical records.  The veteran was asked to submit any 
evidence in his possession that pertained to the claim.  The 
notice included the provisions for the effective date of the 
claims and for the degree of disability assignable.

As for content of the VCAA notice, the documents 
substantially complied with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence); of Charles v. 
Principi, 16 Vet. App. 370 (2002) 
(identifying the document that satisfies VCAA notice); of 
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. 
§ 3.159 notice); of Kent v. Nicholson, 20 Vet. App. 1 (2006) 
(type of evidence needed to substantiate the underlying 
claims of service connection); and of Dingess v. Nicholson, 
19 Vet. App. 473 (notice of the elements of the claim).



To the extent that the VCAA notice came after the initial 
adjudication, the timing of the notice did not comply with 
the requirement that the notice must precede the 
adjudication.  The procedural defect was cured as after the 
RO provided content-complying VCAA notice, the claim was 
readjudicated as evidenced by the supplemental statement of 
the case, dated in July 2007.  Mayfield v. Nicholson, 499 
F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate 
VCAA notice and subsequent readjudication without resorting 
to prejudicial error analysis.).

Claim of Service Connection 

The RO provided pre-adjudication VCAA notice by letter, dated 
in March 2006.  The notice included the type of evidence 
needed to substantiate the claim of service connection, that 
is, evidence of a current disability; evidence of an injury 
or disease in service or an event in service, causing injury 
or disease; and evidence of a relationship between the 
current disability and the injury, disease, or event in 
service.  The veteran was notified that VA would obtain 
service records, VA records, and records of other Federal 
agencies, and that he could submit other records not in the 
custody of a Federal agency, such as private medical records.  
The veteran was asked to submit any evidence in his 
possession that pertained to the claims.  The notice included 
the provisions for the effective date of the claim and for 
the degree of disability assignable.

As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (identifying evidence to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence); of Charles v. Principi, 16 Vet. 
App. 370 (2002) 
(identifying the document that satisfies VCAA notice); of 
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. 
§ 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 
473 (notice of the elements of the claim).



Claim for Increase 

The RO provided pre-adjudication VCAA notice by letter, dated 
in July 2006. 
The notice included the type of evidence needed to 
substantiate the claim, namely, evidence showing that the 
disability had increased in severity and the effect that 
worsening had on his daily functioning.  

The veteran was also notified that VA would obtain VA records 
and records of other Federal agencies, and that he could 
submit other records not in the custody of a Federal agency, 
such as private medical records.  The veteran was asked to 
submit any evidence in his possession that pertained to the 
claim.  The notice included the provisions for the effective 
date of the claim and for the degree of disability 
assignable.

As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (identifying evidence to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence); of Charles v. Principi, 16 Vet. 
App. 370 (2002) (identifying the document that satisfies VCAA 
notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) 
(38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. 
App. 473 (notice of the elements of the claim); and of 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (evidence 
demonstrating a worsening or increase in severity of a 
disability and the effect that worsening has on daily life, 
except general notice of the criteria of the Diagnostic Code 
under which the claimant is rated, which consists of a 
specific measurement or test result). 

At this stage of the appeal when the veteran already has 
notice of the rating criteria as provided in the statement of 
the case, there is no reasonable possibility that further 
notice of the exact same information would aid in 
substantiating the claim, and any deficiency as to VCAA 
compliance regarding the claim is rendered moot.  Wensch v. 
Principi, 15 Vet. App. 362, 368 (2001) (compliance with the 
VCAA is not required if no reasonable possibility exists that 
any notice or assistance would aid the appellant in 
substantiating the claim).  

And further delay of the case to inform the veteran again of 
the pertinent rating criteria 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 
appellant are to be avoided).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to 
assist the claimant in obtaining evidence necessary to 
substantiate the claims.  

On the claim to reopen, a VA medical examination or medical 
opinion is not authorized unless new and material evidence is 
presented, 38 C.F.R. § 3.159(c)(4)(iii), and that is not the 
case here. 

On the claim of clear and unmistakable error, as the claim is 
limited to the facts that were known at the time of the 
alleged error in April 1976, no new evidence can be 
considered.  

The veteran was afforded VA examinations on the claim of 
service connection for diabetic neuropathy and on the claim 
for increase. 

On the claim for special monthly compensation, the evidence 
of record is sufficient to decide the claim.  

Also, as the veteran has not identified any additional 
evidence pertinent to the claims and as there are no 
additional records to obtain, the Board concludes that no 
further assistance to the veteran in developing the facts 
pertinent to the claims is required to comply with the duty 
to assist. 




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence Claims 

Applications to Reopen

Although a prior unappealed decision is final, it may 
nevertheless be reopened if new and material evidence is 
presented.  38 U.S.C.A. § 5108.

As the veteran's current applications to reopen the claims 
were received after August 2001, the regulatory definition of 
"new and material evidence" currently in effect applies.

New evidence means existing evidence not previously submitted 
to agency decision makers.  Material evidence means existing 
evidence that, by itself or when considered with previous 
evidence of record, relates to an unestablished fact 
necessary to substantiate the claim.  New and material 
evidence can be neither cumulative nor redundant of the 
evidence of record at the time of the last prior final denial 
of the claim sought to be reopened, and must raise a 
reasonable possibility of substantiating the claim.  38 
C.F.R. § 3.156(a).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v. 
Principi, 3 Vet. App. 510, 513 (1992).

Diabetes Mellitus 

In a rating decision in September 2002, the RO denied service 
connection for diabetes mellitus on grounds that diabetes 
mellitus was not shown in service, that diabetes was not 
shown within one year of service, and that the veteran did 
not serve in Vietnam to trigger the presumption of service 
connection diabetes mellitus as a disease associated with 
exposure to Agent Orange.  

After the veteran was notified of the adverse determination 
and of his procedural and appellate rights, he did not appeal 
the rating decision and the rating decision became final by 
operation of law based on the evidence of record at the time.

The evidence of record at the time of the RO's rating 
decision is summarized as follows.  

The service personnel records do not show that the veteran 
served in Vietnam and the log of the veteran's ship, the USS 
Monrovia (APA-31), shows that the ship was not in the waters 
of Vietnam in 1964. 

The service medical records contain no complaint, finding, 
history, treatment, or diagnosis of diabetes mellitus.  After 
service, VA records document diabetes mellitus in July 1985.  
In July 1986, there was a 12 year history of diabetes 
mellitus. Diabetes was also documented in 2000.  Private 
medical records documented diabetes mellitus since 1979. 

Additional Evidence

In order that the additional evidence be considered new and 
material, the evidence must relate to the basis for the prior 
denial of the claim, that is, the lack of evidence of 
diabetes mellitus during service or that diabetes mellitus 
was manifested within one year of service, or that the 
veteran served in Vietnam. 

The additional evidence consists of the following exhibits:

Exhibit (1) consists of VA records, dated from 1978 to 2005, 
and private medical records, dated in 1989, documenting 
diabetes mellitus.  The evidence is not new and material 
because it is cumulative, that is, supporting evidence of 
previously considered evidence, namely, that diabetes 
mellitus was first documented more than one year after 
service.  Cumulative evidence does not meet the regulatory 
definition of new and material evidence under 38 C.F.R. 
§ 3.156.

Exhibit (2) consists of a report of VA, dated in January 
2005.  In the report, the VA physician expressed the opinion 
that the veteran had diabetes, type 1, secondary to acute 
prancreatitis in 1978 and not type 2, which is associated 
with exposure to Agent Orange.  As the evidence opposes 
rather than supports the claim, it does not raise a 
reasonable possibility of substantiating the claim and the 
evidence is not new and material.  38 C.F.R. § 3.156(a). 

Exhibit (3) consists of the veteran's statements, which he 
attributes diabetes mellitus to service.  Lay assertions of 
medical causation, not capable of lay observation, cannot 
serve as the predicate to reopen a claim under 38 U.S.C.A. 
§ 5108.  See Moray v. Brown, 5 Vet. App. 211, 214 (1993).  
Therefore, the evidence is not new and material because it 
does not raise a reasonable possibility of substantiating the 
claim.  38 C.F.R. § 3.156(a).

For these reasons, the additional evidence presented is not 
new and material evidence and the claim is not reopened.   
Because the claim is not reopened, the benefit-of-the-doubt 
standard of proof does not apply.  Annoni v. Brown, 5 Vet. 
App. 463, 467 (1993)

Skin Disease  

In a rating decision in June 2002, the RO denied service 
connection for skin disease on grounds that skin disease was 
not diagnosed.  After the veteran was notified of the adverse 
determination and of his procedural and appellate rights, he 
did not appeal the rating decision and the rating decision 
became final by operation of law based on the evidence of 
record at the time. 

The evidence of record at the time of the RO's rating 
decision is summarized as follows.  

The service medical records contain no complaint, finding, 
history, treatment, or diagnosis of skin disease. 

In a statement in received in March 2001, the veteran stated 
that he caught a skin disease in service and that ever since 
he used a skin ointment.  In November 2001, the veteran filed 
a claim for a clothing allowance because he was using an 
ointment for treatment of skin disease.  The claim was denied 
because the veteran was not service-connected for a skin 
rash. 

Private medical records, dated in 2000 and in 2001, show that 
when reported the veteran's skin was normal. 

Additional Evidence

In order that the additional evidence be considered new and 
material, the evidence must relate to the basis for the prior 
denial of the claim, that is, the lack of evidence of skin 
disease since service.

The additional evidence consists of the following:

VA records, dated in 1980, note pseudofollicultis barbae, and 
records from 1981 to 1987 show that the veteran was seen 
several times for various skin conditions, described as 
either hives, an irritation, or a rash.  

In 2004 and 2005, the veteran was prescribed a topical cream 
and a shampoo for skin conditions.  The evidence is new and 
material because it relates to an unestablished fact 
necessary to substantiate the claim, that is, evidence of 
skin disease, the absence of which was the reason the claim 
was previously denied by the RO in June 2002, and the 
evidence raises a reasonable possibility of substantiating 
the claim.  38 C.F.R. § 3.156.  

Service Connection for Left Eye Diabetic Retinopathy with 
Macular Edema and Cataracts 

The service medical records contain no finding, complaint, 
history, treatment, or diagnosis of left eye diabetic 
retinopathy or other left eye abnormality.  

Service records show that the veteran did not serve in 
Vietnam.

VA records disclose that in July 1985, the provisional 
diagnosis was to rule out diabetic retinopathy.  In May 2001, 
the veteran tested positive for diabetic retinopathy. 

In a statement, dated in February 2003, a private physician 
reported that the veteran was evaluated for diabetic 
retinopathy with a 20 year history of insulin-dependent 
diabetes.  The impressions were nonproliferative diabetic 
retinopathy in both eyes with significant macular edema in 
the left eye and cataracts in both eyes.  

On VA examination in January 2005, the examiner traced the 
onset of diabetes mellitus to 1978.  The pertinent diagnoses 
were diabetes mellitus and diabetic retinopathy secondary to 
diabetes mellitus.  

In statements in support of his claim, dated in December 2005 
and in March 2006, the veteran stated that his left eye 
condition was due to diabetes or alternatively due to 
hypertension.  

On VA vision examination in April 2007, the pertinent 
diagnoses were diabetes mellitus with diabetic retinopathy 
more significant in the left eye with loss of vision in the 
left eye and early cataracts due to age.  The examiner 
expressed the opinion that the veteran's loss of vision in 
the left eye was due to diabetic retinopathy and not to high 
blood pressure.

Service connection has been granted for arteriosclerotic 
heart disease with myocardial ischemia and hypertension.

Analysis 

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty in active service or for aggravation of a 
preexisting injury suffered or disease contracted in the line 
of duty in active service.  38 U.S.C.A. §§ 1110, 1131.   

Where a veteran who served for ninety days develops diabetes 
mellitus to a degree of 10 percent or more within one year 
from separation from active service, service connection may 
be presumed to have been incurred in active service even 
though there is no evidence of such disease during the period 
of active service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. 
§§ 3.307, 3.309.

A veteran who, during active military service, served in the 
Republic of Vietnam during the Vietnam era is presumed to 
have been exposed to herbicide agents, including a herbicide 
commonly referred to as Agent Orange.  38 U.S.C. § 1116.  For 
a veteran, who was exposed to herbicides in Vietnam, there is 
a presumption of service connection for diabetes mellitus. 38 
U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6) and 3.309(e).

Service connection means that the facts, shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with active service, or if 
preexisting such service, was aggravated by service.  This 
may be accomplished by affirmatively showing inception or 
aggravation during service. 38 C.F.R. § 3.303(a).

For the showing of chronic disease in service, there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required only 
where the condition noted during service is not, in fact, 
shown to be chronic or where the diagnosis of chronicity may 
be legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim.  
38 C.F.R. § 3.303(b).

Service connection may also be granted for disease shown 
after service, when all of the evidence, including that 
pertinent to service, shows that it was incurred in service.  
38 C.F.R. § 3.303(d).  

Secondary service connection may be granted for a disability 
that is proximately due to or the result of a service- 
connected disability.  38 C.F.R. § 3.310(a). Secondary 
service connection includes the concept of aggravation of a 
nonservice-connected disability by a service-connected 
disability.  Allen v. Brown, 7 Vet. App. 439 (1995).  The 
provision of 38 C.F.R.§ 3.310(a) was recently amended to 
conform with Allen, but since VA has been complying with 
Allen since the decision was issued in 1995, the amendment is 
not a liberalizing change in the law and does not otherwise 
change the application of the 38 C.F.R. § 3.310.

Service medical records do not show any complaint, finding, 
history, or diagnosis of diabetic retinopathy of the left eye 
or other left eye abnormality. On the basis of the service 
medical records, diabetic retinopathy with macular edema and 
cataracts in the left eye was not affirmatively shown to be 
present during service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. 
§ 3.303(a).  

After service, diabetic retinopathy of the left eye was first 
suspected in 1985 and then diagnosed in 2001, and diabetic 
retinopathy with macular edema and cataracts in the left eye 
was diagnosed in 2003, well beyond the one-year presumptive 
period, following service in 1965, for diabetes as a chronic 
disease under 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 
3.309.  And as the veteran did not serve in Vietnam, the 
presumption of service connection for diabetes mellitus 
associated with exposure to Agent Orange does not apply under 
38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6) and 3.309(e).  

And as there is no competent evidence either contemporaneous 
with or after service of diabetic retinopathy with macular 
edema and cataracts in the left eye that was noted, that is, 
observed during service, the principles of service connection 
pertaining to chroncity and continuity of symptomatology 
under 38 C.F.R. § 3.303(b) do not apply. Savage v. Gober, 10 
Vet. App. 488, 495-96 (1997).




As for service connection based on the initial documentation 
of diabetic retinopathy with macular edema and cataracts in 
the left eye after service under 38 C.F.R. § 3.303(d) and as 
for the veteran's statements attributing his current left eye 
disability to service, where, as here, the determinative 
issue involves a question of a medical diagnosis or of 
medical causation, not capable of lay observation, competent 
medical evidence is required to substantiate the claim 
because a lay person is not qualified through education, 
training, and expertise to offer an opinion on a medical 
diagnosis or on medical causation.  Competent medical 
evidence means evidence provided by a person who is qualified 
through education, training, or experience to offer a medical 
diagnosis, statement, or opinion.  For this reason, the Board 
rejects the veteran's statements as competent evidence to 
substantiate the claim that the current left eye disability, 
first documented after service, is related to an injury, 
disease, or event of service origin.  Jandreau v. Nicholson, 
492 F.3d 1372 (Fed. Cir. 2007).

On the question of secondary service connection, on VA 
examination in April 2007, the pertinent diagnosis was 
diabetes mellitus with diabetic retinopathy.  The expressed 
the opinion that the veteran's loss of vision in the left eye 
was due to diabetic retinopathy and not to high blood 
pressure.  The evidence shows that diabetic retinopathy is 
clearly associated with diabetes mellitus, a 
nonservice-connected disability, and not hypertension, which 
is a service-connected disability. 

As for the veteran's statements attributing his current left 
eye disability to his service-connected hypertension, where, 
as here, determinative issue involves a question of medical 
causation, not capable of lay observation, competent medical 
evidence is required to substantiate the claim.  Competent 
medical evidence means evidence provided by a person who is 
qualified through education, training, or experience to offer 
a medical diagnosis, statement, or opinion.  For this reason, 
the Board rejects the veteran's statements as competent 
evidence to substantiate the claim that the current left eye 
disability is related to the service-connected hypertension.  
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

As the Board may consider only independent, competent medical 
evidence to support its findings on a question involving a 
medical diagnosis or medical causation, which is not capable 
of lay observation, and as there is no such favorable 
competent medical evidence to support the claim of service 
connection for diabetic retinopathy with macular edema and 
cataracts in the left eye to an injury, disease, or event of 
service origin or to the service-connected hypertension, the 
preponderance of the evidence is against the claim and the 
benefit-of-the-doubt standard of proof does not apply. 
38 U.S.C.A. § 5107(b). 

Claim of Clear and Unmistakable Error

An individual whose VA claim has been adjudicated by an RO 
has one year after the issuance of written notification in 
which to initiate an appeal to the Board by filing a notice 
of disagreement (NOD).  If no appeal is filed, the decision 
is final, and is not subject to revision on the same factual 
basis.  38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104(a).  Such a 
final decision may, however, be reversed or amended where 
evidence establishes that it was a product of clear and 
unmistakable error.  Where the evidence establishes such an 
error, the prior decision will be reversed or amended and it 
will have the same effect as if the corrected decision had 
been made on the same date as the reversed or amended 
decision.  38 C.F.R. § 3.105(a).

Clear and unmistakable error is defined as follows:  Either 
the correct facts, as they were known at the time, were not 
before the adjudicator or the statutory provisions extant at 
the time were incorrectly applied.  A determination that 
there was clear and unmistakable error must be based on the 
record and law that existed at the time of the prior 
adjudication in question.  Russell v. Principi, 3 Vet. App. 
at 313-14 (1992). 

A clear and unmistakable error is the sort of error, which 
had it not been made, would have manifestly changed the 
outcome at the time it was made.  It is the kind of error, of 
fact or of law, that when called to the attention of later 
reviewers compels the conclusion, to which reasonable minds 
could not differ, that the result would have been manifestly 
different but for the error. 

Analysis

The veteran asserts that the effective for a total disability 
rating for compensation based on individual unemployability 
should be in 1974 when he became too disabled to work. 

The record shows that in a rating decision in November 1975, 
the RO increased the rating for the service-connected 
arteriosclerotic heart disease with myocardial ischemia and 
hypertension to 60 percent, effective June 23, 1975. 

In December 1975, the veteran filed an employment statement, 
indicating that he had returned to work on a trail basis in 
October 1975.  In a second employment statement filed on 
February 13, 1976, the veteran that he last worked on 
February 7, 1976, which the RO accepted as a claim for a 
total disability rating. 

In a rating decision in April 1976, the RO granted a total 
disability rating for compensation based on individual 
unemployability, effective February 7, 1976, the day the 
veteran stated he last worked.  After the veteran was 
notified of the award and of his appellate rights, the 
veteran did not appeal the rating decision and by operation 
of law, the rating decision by the RO became final and may 
not be reversed unless clear and unmistakable error is shown.  
38 C.F.R. § 3.105(e). 

The effective date of the award of an increase in 
compensation is either the date of claim or the dated 
entitlement arose, whichever is later.  38 U.S.C.A. § 
5110(a); 38 C.F.R. § 3.400(o)(1).  The exception to the rule 
allows for the earliest date as of which it was factually 
ascertainable that an increase in disability had occurred if 
the claim was received within 1 year from such date; 
otherwise, the effective date is the date of receipt of the 
claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 

In this case, the date of receipt of the claim for the total 
disability rating was February 13, 1976, consisting of the 
veteran's statement of employment in which he stated that he 
last worked on February 7, 1976.  

The effective date of the award then is either the date of 
claim, February 13, 1976, or the earliest date as of which it 
was factually ascertainable that an increase in disability 
had occurred as the claim was received within 1 year from the 
date the veteran last worked, that is, February 7, 1976.   

As it has not been established that either the correct facts, 
as they were known at the time, were not before the 
adjudicator, or that the regulatory provisions extant at the 
time were incorrectly applied, reversal or revision on the 
basis of clear and unmistakable error of the rating decision 
by the RO in April 1976, assigning an effective date of 
February 7, 1976, for the total disability rating for 
compensation based on individual unemployabiity is denied.

Claim for Increase 

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 38 
C.F.R. Part 4.  The percentage ratings contained in the 
Rating Schedule represent, as far as can be practicably 
determined, the average impairment in earning capacity 
resulting from diseases and injuries incurred or aggravated 
during military service and their residual conditions in 
civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings," whether it is an 
initial rating case or not.  Fenderson v. West, 12 Vet. 
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 
(2007).

Arteriosclerotic heart disease with myocardial ischemia and 
hypertension is currently rated 60 percent disabling under 
Diagnostic Code 7005, which has been in effect since 1975. 

The current claim of increase was received at the RO in March 
2006.



On VA examination in November 2006, the examiner estimated 
the veteran's METS as 5 or 6 because he was as able to 
garden.  The blood pressure readings were 164/90, 162/92, and 
160/90.  An ECHO study revealed a normal ejection fraction 
and exercise tolerance tests showed METS of 2.2.  In May 
2007, the examiner explained that the discrepancy between the 
METS on examination in November 2006 were due to the veteran 
stopping the test early due to non-cardiac problems.  The 
examiner still estimated the veteran's METS at 5 or 6 since 
based on his physical activities. 

Under Diagnostic Code 7005, the criteria for the next higher 
rating, 100 percent, are documented coronary artery disease 
resulting in chronic congestive heart failure, or workload of 
3 METs or fewer resulting in dyspnea, fatigue, angina, 
dizziness, or syncope; or, left ventricular dysfunction with 
an ejection fraction of less than 30 percent.

In the absence of evidence of chronic congestive heart 
failure (not shown) , or workload of 3 METs or fewer 
(estimated METS of 5 or 6), or left ventricular dysfunction 
with an ejection fraction of less than 30 percent (normal 
ejection fraction on ECHO study), the criteria for the next 
higher rating have not been met.  While an exercise tolerance 
test in November 2006 resulted in only 2.2 METS, the VA 
examiner explained that the test was stopping early due to 
non-cardiac problems, and the VA examiner confirmed the 
veteran's estimated METS at 5 or 6 based on his physical 
activity. 

As the criteria for the next higher rating have not been 
shown, the preponderance of the evidence is against the 
claim, and the benefit-of-the-doubt standard of proof does 
not apply. 38 U.S.C.A. § 5107(b).

Special Monthly Compensation

If a veteran, as the result of service-connected disability, 
has suffered blindness of one eye, he is entitled to 
additional monthly compensation, which is referred to as 
special monthly compensation.  38 U.S.C.A. § 1114(k); 38 
C.F.R. § 3.350(a).

On VA vision examination in April 2007, the pertinent 
diagnoses were diabetes mellitus with diabetic retinopathy 
more significant in the left eye with loss of vision in the 
left eye and early cataracts due to age.  The examiner 
expressed the opinion that the veteran's loss of vision in 
the left eye was due to diabetic retinopathy and not to high 
blood pressure.

As the loss of vision of the left eye is not due to a 
service-connected disability, there is no factual or legal 
basis to the claim for special monthly compensation for loss 
of vision of the left eye.

As the preponderance of the evidence is against the claim, 
the benefit-of-the-doubt standard of proof does not apply. 38 
U.S.C.A. § 5107(b).


ORDER

As new and material evidence has not been presented, the 
claim of service connection for diabetes mellitus is not 
reopened, and the appeal is denied.  

As new and material evidence has been submitted, the claim of 
service connection for skin disease is reopened, and to this 
extent only the appeal is granted.

Service connection for diabetic retinopathy with macular 
edema and cataracts in the left eye is denied.

The claim to establish clear and unmistakable error in a 
rating decision in April 1976 by the RO, assigning February 
7, 1976, as the effective date for the grant of a total 
disability rating for compensation based on individual 
unemployablity, is denied.  

A rating higher than 60 percent for arteriosclerotic heart 
disease with myocardial ischemia and hypertension is denied.  

Special monthly compensation based on loss of use of the left 
eye is denied.
REMAND 

As the claim of service connection for skin disease is reopen 
and in order to ensure procedural due process, the claim is 
remanded to the RO for the following action. 

Adjudicate the claim of service 
connection for skin disease on the 
merits, considering all the evidence of 
record.  If the claim remains denied, 
furnish the veteran a supplemental 
statement of the case and return the 
case to the Board.  

The veteran has the right to submit additional evidence and 
argument on the matter 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.  
38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).

____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs