Citation Nr: 0814032 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-22 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a pulmonary disorder. 2. Entitlement to service connection for rheumatoid arthritis. 3. Entitlement to a rating in excess of 20 percent for diabetes mellitus (diabetes) with erectile dysfunction and retinopathy. 4. Entitlement to a rating in excess of 20 percent for peripheral vascular disease of the left lower extremity. 5. Entitlement to a rating in excess of 20 percent for peripheral vascular disease of the right lower extremity. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Associate Counsel INTRODUCTION The veteran had active service from March 1954 to April 1959 and January 1961 to January 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The issues of increased ratings for diabetes with retinopathy and erectile dysfunction and peripheral vascular disease of the lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A pulmonary disorder was not incurred in service and is not causally related to service. 2. Rheumatoid arthritis was not incurred in service and was not diagnosed within a year of the veteran's separation from service; and it is not been shown to be otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a pulmonary disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). 2. The criteria for service connection for rheumatoid arthritis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). In March 2005, the agency of original jurisdiction (AOJ) sent a letter to the veteran providing the notice then required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In November 2006, the AOJ provided notice of the effective date and disability rating regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the November 2006 notice letter postdated the initial adjudication, the claims were subsequently readjudicated without taint from the prior decision and no prejudice is apparent. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of fully compliant notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA has also done everything reasonably possible to assist the veteran with respect to his claim for benefits, such as obtaining medical records and providing a personal hearing. Although there is no VA examination with a nexus opinion on file for these claims, none is required. Such development is to be considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent evidence of diagnosed disability or symptoms of disability; establishes that the veteran experienced an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period; and indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). As discussed below, the evidence does not establish that the veteran had either condition in service or suggest that either condition may be associated with service; consequently, a VA examination with nexus opinion is not necessary. The Board does not know of any additional relevant evidence which has not been obtained and finds that the duty to notify and assist has been met. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for the claimed disorder, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Finally, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service, one year for arthritis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2007). Pulmonary Disorder The service medical records do not report any complaints of, or treatment for, a chronic pulmonary disorder or associated symptoms such as shortness of breath, and examination records dating in 1961, 1963, 1966, and 1967 report normal chest X- ray findings. Post-service records indicate that the veteran had a pack a day cigarette habit for approximately 23 years. Additionally, the records indicate that the initial history of a pulmonary issue occurs in September 1986, when the veteran reports having progressive shortness of breath with activity. See September 1986 VA X-ray record. X-ray images from September 1986 revealed no evidence of active cardiopulmonary disease though there was some interstitial fibrotic change with moderately hyperinflated lung, which the interpreter thought "[might be] consistent with early stage of [chronic obstructive pulmonary disease." The initial definite diagnosis of a pulmonary disorder is found in a March 1995 VA treatment record, which reports that the veteran had chronic bronchitis secondary to tobacco abuse. Subsequent records (beginning in 2004) report diagnoses of chronic obstructive pulmonary disease (COPD), chronic interstitial lung disease, and pulmonary fibrosis. See generally Jundt and Metroplex treatment records. The records indicate that the diagnoses were later limited to interstitial lung disease of "uncertain etiology," with possibly a component of COPD. See February and October 2005 Jundt record. The Board finds that service connection for a pulmonary disorder is not warranted. Although the evidence indicates that the veteran has a currently diagnosed pulmonary condition, the record does not contain any competent medical evidence relating the pulmonary condition to service. The service medical records report no treatment for a pulmonary condition and there is no suggestion of a chronic pulmonary disorder until 1986, approximately 10 years after separation, at the earliest. Additionally, there is no competent medical opinion suggesting a link between the veteran's current pulmonary disorder and service. Although the veteran has asserted that such a link exists, the veteran, as a layperson, is not competent to comment on the etiology of a medical disorder. Rather, medical evidence is needed to that effect. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In this case, based on the lack of evidence of an in-service incurrence or a nexus to service, service connection must be denied. Rheumatoid Arthritis Service medical records do not report any findings of, or treatment for, rheumatoid arthritis, and the initial diagnosis does not occur until over 27 years after separation from service. An August 2004 treatment record reports the veteran's history of joint pain in the hands and shoulders for six months that progressed to pain, warmth, swelling, and erythema in the knees, wrists, and fingers. The examiner assessed the veteran with inflammatory arthropathy, "most consistent with rheumatoid arthritis." The veteran was subsequently diagnosed with rheumatoid arthritis in January 2005. See January 2005 Metroplex treatment record. The evidence of record does not contain any competent medical evidence linking the currently diagnosed rheumatoid arthritis to service. Although the service medical records do report treatment for pain and pain and problems with a variety of joints, but these pains/problems are not attributed to rheumatoid arthritis (they are generally a result of injuries) and the evidence does not contain any competent evidence indicating that there is a link between service and the currently diagnosed rheumatoid arthritis. Although the veteran has asserted that his rheumatoid arthritis is a result of in-service cold exposure, the veteran, as a layperson, is not competent to comment on the presence or etiology of a medical disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In this case, the competent evidence does not indicate that the veteran's rheumatoid arthritis was incurred in or is otherwise causally related to service; consequently, service connection must be denied. ORDER Service connection for a pulmonary disorder is denied. Service connection for rheumatoid arthritis is denied. REMAND A review of the record indicates that the veteran was never provided with the notice required by 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b), and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) for the claims of increased ratings for peripheral vascular disease of the lower extremities. Consequently, these claims must be remanded. Further development is also needed on the claim of an increased rating for diabetes with retinopathy and erectile dysfunction. The August 2006 VA diabetes examination reports that a June 2005 eye exam noted mild bilateral diabetic retinopathy. A review of the record indicates that the June 2005 eye exam record is not associated with the claims file, however. It should be obtained. Additionally, based on the age of the last eye examination and the veteran's history of having bilateral cataracts secondary to diabetes, the Board finds that a contemporaneous eye examination should be conducted. See 38 U.S.C.A. § 5103A(d). 1. The AMC must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159; Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). For the claims of increased ratings for peripheral vascular disease, the AMC should provide the veteran with notice that he may submit evidence showing the effects of the worsening or increase in severity upon his employment and daily life and should provide him with general notice of the criteria listed in all applicable rating codes, such as Diagnostic Codes 7114, 7122, .and 8120. For the claim of increased rating for diabetes, the AMC should provide the veteran with notice of the criteria listed in Diagnostic Codes 6006, 7522, and 7913. 2. The AMC should obtain all outstanding VA treatment records, particularly the June 2005 VA eye record. The veteran should also be asked about the existence of any outstanding private treatment records; all reported outstanding private treatment records should be requested. 3. The AMC should schedule the veteran for a VA ocular examination to determine the current status of his diabetic retinopathy. The examiner is asked to provide the complete results of visual field testing, and an opinion as to the etiology of any loss of visual field. Additionally, the examiner is asked to state whether there are any additional ocular disorders that are a complication of the service-connected diabetes. A complete rationale for all opinions expressed must be provided. If the examiner finds it impossible to provide an opinion without resort to pure speculation, the examiner should so indicate. 4. Thereafter, the AMC should readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs