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