Citation Nr: 0814903 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 06-01 074 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an compensable disability rating for erectile dysfunction. 2. Entitlement to service connection for visual problems, to include as secondary to the service-connected diabetes mellitus. 3. Entitlement to service connection for coronary artery disease, to include as secondary to the service-connected diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy, to include as secondary to the service-connected diabetes mellitus. 5. Entitlement to service connection for peripheral vascular insufficiency, to include as secondary to the service- connected diabetes mellitus. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Jackson, Mississippi, Department of Veterans' Affairs (VA) Regional Office (RO). The veteran submitted testimony before the undersigned Acting Veterans' Law Judge at a June 2006 Travel Board hearing. The Board notes that, in a statement from the veteran received in February 2008, the veteran appears to be financially liable for the cost of emergency care received, and he seems to be seeking VA's assistance with that matter. Accordingly, this issue is referred to the RO for further clarification and appropriate action. The issues of entitlement to a compensable rating for erectile dysfunction and service connection for visual problems, to include as secondary to diabetes mellitus, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence does not support the conclusion that the claimed coronary artery disease or peripheral neuropathy are related to the veteran's active service, or are secondary to a service-connected disability. 2. The evidence does not support the conclusion that the veteran has a current diagnosis regarding the claimed peripheral vascular insufficiency. CONCLUSIONS OF LAW 1. Coronary artery disease was not incurred or aggravated during active duty service or is secondary to diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2007). 2. Peripheral neuropathy was not incurred or aggravated during active duty service or is secondary to diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2007). 3. Peripheral vascular insufficiency was not incurred or aggravated during active duty service or is secondary to diabetes mellitus. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran in June 2004 and September 2004 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, the veteran was not provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disabilities on appeal. However, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and the veteran has submitted private treatment records and his own written statements. And he was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, he was afforded a VA medical examination in March 2005. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Further, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, the regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Although there was an amendment to § 3.310, the veteran filed his claim prior to October 10, 2006, the effective date of the change. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006). The older, more liberal, version is applicable to the appeal as the new version would have impermissible retroactive effect. See VAOPGCPREC 7-2003. Overall, the Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regards to the claim for service connection for peripheral vascular insufficiency, the medical records in the claims file indicate no diagnosis with regards to a vascular problem. At the March 2005 VA examination, the veteran was noted to have had no claudication symptoms in the lower extremities and no diagnosis regarding a vascular condition was made. Without evidence of a current diagnosis, no claim can be made. As service connection may only be granted for a current disability, when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. §§ 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regards to the two remaining claims for service connection, the veteran's service medical records indicate no complaints or treatment regarding coronary artery disease, peripheral neuropathy, or peripheral vascular insufficiency. Years after separation, the veteran has been diagnosed with coronary artery disease and peripheral neuropathy. He was treated for coronary artery disease in December 2002 when he was hospitalized and underwent surgery for the condition. He underwent neurological studies and was indicated to have received treatment for peripheral neuropathy in November 1999. However, as each of these were initially diagnosed years after separation and nothing in the medical records suggest a link between the veteran's active duty and his current diagnoses, service connection on a direct basis cannot be established. The veteran is service connected for diabetes mellitus rated as 20 percent disabling from July 30, 2004, the date of claim for service connection of diabetes. Diabetes was noted to have been originally diagnosed in June 2004. However, nothing in the medical evidence of record suggests a link between his diagnoses of coronary artery disease and peripheral neuropathy and his service-connected diabetes mellitus. The March 2005 VA examiner indicated that coronary artery disease and peripheral neuropathy were each diagnosed before diabetes and unlikely to be related to diabetes. Additionally, the veteran's coronary artery disease and peripheral neuropathy have not been shown to be aggravated by his diabetes mellitus as treatment for these disorders has not shown to have increased since the diagnosis of diabetes mellitus. In fact, the veteran's treatment for these conditions does not seem to be on a regular basis. As a result, it is determined that the coronary artery disease and hypertension have not been aggravated by his diabetes either. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for coronary artery disease, to include as secondary to the service-connected diabetes mellitus, is denied. Service connection for peripheral neuropathy, to include as secondary to the service-connected diabetes mellitus, is denied. Service connection for peripheral vascular insufficiency, to include as secondary to service-connected diabetes mellitus, is denied. REMAND The veteran's erectile dysfunction is currently evaluated as noncompensably disabling. Erectile dysfunction is not listed in the Rating Schedule; however, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27. As such, the erectile dysfunction can be rated under Diagnostic Code 7522, which provides for a 20 percent rating for deformity of the penis with loss of erectile power. Additionally, such Diagnostic Code provides that entitlement to special monthly compensation under 38 C.F.R. § 3.350 should be considered and in recognition of the veteran's erectile dysfunction, he was awarded special monthly compensation based on loss of use of a creative organ as of February 2004. Upon a review of the record, the Board finds that the veteran has not been physically examined to determine if he has a penile deformity along with his erectile dysfunction. While the veteran testified before the undersigned judge at the June 2007 Travel Board hearing and indicated a similar history of inability to achieve an erection as reported to the March 2005 VA examiner, he also reported that he had an enlarged prostate and problems with frequent uncontrolled urination and his testicles. As no physical examination has been conducted in order to determine if there is penile deformity along with erectile dysfunction, this must be conducted prior to adjudication of the veteran's claim in order to determine a proper disability rating. Further development is also necessary to determine if the veteran has a current diagnosis of visual problems as secondary to his service-connected diabetes mellitus. At the June 2007 Travel Board hearing before the undersigned judge, the veteran reported having recently been told that he may need additional surgery for cataracts at a VA treatment session. The most recent VA treatment records date from March 2005. Therefore, the veteran's VA treatment records since that date need to be made a part of the claims file prior to adjudication of his claim. Accordingly, the case is REMANDED for the following action: 1. With regards to the claim for increased rating, issue the veteran a letter informing him of that required by Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). With regards to the claim for service connection, issue the veteran a letter informing him of any information and evidence not of record (1) that is necessary to substantiate the now-opened claims for service connection; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) ask the claimant to provide any evidence in his possession that pertains to the claims in accordance with 38 C.F.R. § 3.159(b)(1). Also include the notice requirements as outlined in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Schedule the veteran for a VA examination to determine the severity of his service-connected erectile dysfunction as secondary to diabetes mellitus. The examiner should include an assessment as to whether the veteran has a penile deformity in addition to loss of erectile power. The examiner should review the claims file in conjunction with the examination and make a note of such review in the examination report. A complete rationale for any opinion expressed should be included in the report. 3. Obtain the veteran's VA treatment records for the claimed eye disability dated from March 2005 to the present, including any records from the reported eye surgery, per written notes in the March 2005 VA Diabetes examination report. 4. Thereafter, readjudicate the claim for increased rating for erectile dysfunction (specifically separately rating this disability from the veteran's also service-connected diabetes mellitus) and the claim for service connection for visual problems, to include as secondary to diabetes mellitus. If either or both issues remain denied issue the veteran a supplemental statement of the case and allow an appropriate period for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The appellant need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2007) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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. All claims remanded by the Board 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs