Citation Nr: 1014166 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 08-09 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for hypercholesterolemia. 2. Entitlement to an initial compensable rating for erectile dysfunction. 3. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus. 4. Entitlement to a rating in excess of 60 percent for history of myocardial infarction with coronary artery disease status-post coronary artery bypass graft. 5. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 6. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1970 to May 1972. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied the Veteran's claims of entitlement to service connection for hypercholesterolemia and hypertension, granted service connection for erectile dysfunction and assigned a noncompensable (zero percent) evaluation, continued a 60 percent disability evaluation for history of myocardial infarction with coronary artery disease status-post coronary artery bypass graft, and continued 10 percent disability evaluations for peripheral neuropathy of the right and left lower extremities. Issues three through six as listed above 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. FINDING OF FACT 1. Hypercholesterolemia (elevated cholesterol) is a laboratory finding and not a chronic disability for which VA compensation benefits may be awarded. 2. The Veteran's erectile dysfunction is manifested by decreased loss of erectile power without penile deformity. CONCLUSIONS OF LAW 1. Service connection for hypercholesterolemia is not warranted as a matter of law. 38 U.S.C.A. §§ 101(16), 105(a), 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.115(b), Diagnostic Code 7522 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in June 2007, November 2007, and March 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2009). Specifically, the RO notified the Veteran of information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. In November 2007, the RO also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to the increased rating for erectile dysfunction, it is a claim of an appeal of an initial rating and fully satisfactory notice was delivered after it was adjudicated. However, the RO subsequently readjudicated the claim based on all the evidence in July 2008. The Veteran was able to participate effectively in the processing of his claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran has not been provided with a VA examination for his claim for service connection for hypercholesterolemia. As the Board will discuss in detail in its analysis below, there is no objective and competent evidence of a disability for VA compensation purposes. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the United States Court of Appeals for Veterans Claims (Court) held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no competent medical evidence of a current disability for VA purposes. As to the claim for erectile dysfunction, the Veteran was provided with a VA examination in November 2007. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board therefore concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2009); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. The Veteran has declined a personal hearing. Thus, the duties to notify and assist have been met. Analysis Hypercholesterolemia The Veteran is seeking service connection for hypercholesterolemia. When seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (West 2002). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b) (2009). The record is replete with notations of high cholesterol and diagnoses of hyperlipidemia. Notwithstanding the findings of elevated cholesterol, such findings are not recognized as a disability for VA benefits purposes. See 38 U.S.C.A. §§ 101(16), 105(a), 1131 (West 2002); 38 C.F.R. § 3.303(c) (2009); see also 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities). The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Court has also interpreted the requirement of current disability thus: "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability." See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (b) (2009). In sum, the Board reiterates that hypercholesterolemia is merely a laboratory finding, and not a "disability" for which VA compensation benefits may be awarded. Consequently, service connection for hypercholesterolemia is not warranted. As such, the preponderance of the evidence is against the claim for service connection for hypercholesterolemia, and the benefit-of-the-doubt doctrine is not for application in the instant case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Erectile Dysfunction The Veteran essentially contends that his erectile dysfunction disability is more severe than contemplated by the current noncompensable evaluation. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2009). Since the initial grant of service connection, the Veteran's disability has been assigned a non-compensable rating. In an appeal of an initial rating, consideration must be given to "staged" ratings, i.e., disability ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will thus consider entitlement to "staged ratings" in this case. The Veteran's erectile dysfunction is rated by analogy under hyphenated Diagnostic Code 7599-7522. 38 C.F.R. § 4.115b (2009). This specific disability is not listed on the Rating Schedule, and the RO assigned Diagnostic Code 7599 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2009). The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.115b, Diagnostic Code 7522, which evaluates penis deformity, with loss of erectile power. Diagnostic Code 7522 is deemed by the Board to be the most appropriate code primarily because it is the only diagnostic code which includes loss of erectile power among its criteria. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Diagnostic Code 7522 provides a 20 percent rating for deformity of the penis with loss of erectile power. No other disability rating is provided by this diagnostic code. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2009). The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2009). To obtain a compensable rating under Diagnostic Code 7522, deformity of the penis with loss of erectile power must be demonstrated. In the instant case, it is undisputed that the Veteran has erectile dysfunction affecting the quality of his erections as noted in the November 2007 VA examination report. The rating criteria, however, also require deformity of the penis to warrant a compensable evaluation. The medical evidence in this case is negative for complaint, treatment, or findings of penile deformity. The November 2007 VA examination is negative for any such deformity, and the Veteran does not contend otherwise. Unlike special monthly compensation, which is specifically designed to compensate veterans for disabilities such as erectile dysfunction, the rating schedule is designed with a different purpose in mind: to provide compensation for disabilities which result in an impairment in earning capacity (i.e. interference with employment). See 38 C.F.R. §§ 3.321(a), 4.1 (2009). Given that the Veteran's erectile dysfunction has not (and could not possibly have) interfered with his employment, a compensable evaluation is not warranted under the schedular criteria. Accordingly, the criteria for a compensable evaluation have not been met and the Veteran's claim is denied. As noted above, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson, supra. In this case, the medical evidence of record appears to support the proposition that the Veteran's service-connected erectile dysfunction has not changed appreciably since the Veteran filed his claim. Based on the record, the Board finds that a noncompensable disability rating was properly assigned for the entire period from the date of service connection, May 29, 2007. As the preponderance of the evidence is against the claim for an increased rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hypercholesterolemia is denied. An initial compensable rating for erectile dysfunction is denied. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). Service Connection Claim The Veteran essentially contends that he has hypertension due to his service-connected diabetes mellitus. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was afforded a VA examination for his hypertension in November 2007, the report of which noted that the Veteran's hypertension preexisted his diabetes mellitus. However, the examiner did not discuss whether the Veteran's hypertension was aggravated by service-connected diabetes mellitus. On remand, the Veteran should be afforded another examination to determine whether service-connected diabetes mellitus aggravates (i.e., permanently worsens) his hypertension. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992) (noting that when medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007), (finding that when VA provides a veteran with a medical examination related to a claim for service connection, the examination must be adequate). Increased Rating Claims VA provided the Veteran with examinations in November 2007 for the disabilities for which he seeks increased evaluations. He has argued on multiple occasions that the examinations were inadequate. For example, he contends that the heart examination did not include exertion testing, and the peripheral neuropathy examination did not include electromyogram/nerve conduction velocity (EMG/NCV) studies. The Board notes that the November 2007 heart examination report reflects that exercise testing was contraindicated at that time because of the Veteran's history of infarct with multiple grafting. It is unclear whether exercise testing is still contraindicated since the last examination was over two years ago. Thus the Veteran should be provided another examination to be given an opportunity to perform exercising testing if deemed appropriate. As to peripheral neuropathy of the lower extremities, the Veteran was last examined in November 2007 at which time EMG/NCV tests were not performed. On remand, the Veteran should be provided such tests and the examiner should interpret the level of severity of the Veteran's disabilities represented on the tests (i.e. mild, moderate, moderately severe or severe). While not argued by the Veteran, the Board also notes that it has been over two years since his disabilities were last evaluated. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Contemporaneous examinations, to include all appropriate testing discussed herein, if possible, of the Veteran's myocardial infarction with coronary artery disease status- post coronary artery bypass graft and peripheral neuropathy of the right and left lower extremities are necessary to accurately assess his disability picture. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to ascertain whether his hypertension is aggravated by his service-connected diabetes mellitus. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner in conjunction with conducting the examination of the Veteran. The examiner should annotate his report to reflect review of the claims file was undertaken. A discussion of the Veteran's documented medical history and assertions should also be included. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should determine whether the Veteran's hypertension was aggravated by his service-connected diabetes mellitus. If the service- connected diabetes mellitus aggravates (i.e., permanently worsens) the hypertension, the examiner should identify the percentage of disability which is attributable to the aggravation. A complete rationale for any opinion expressed should be provided. If the requested opinion cannot be rendered without resort to speculation, the examiner should so stated and provide a rationale why. 2. Schedule the Veteran for an examination to determine the current level of severity of his myocardial infarction with coronary artery disease status- post coronary artery bypass graft. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies, including exercising testing if deemed appropriate, should be performed and the examination report should comply with all AMIE protocols for rating heart disabilities. If any protocol cannot be carried out, the examiner should specifically indicate the reasons. 3. Schedule the Veteran for an examination to determine the current level of severity of his peripheral neuropathy of the right and left lower extremities. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any indicated studies, including EMG/NCV tests, should be performed and the examination report should comply with all AMIE protocols for rating such disabilities. The examiner should specifically interpret any EMG/NCV tests and determine the level of severity represented (i.e. mild, moderate, moderately severe or severe) therein. If any protocol cannot be carried out, the examiner should specifically indicate the reasons. 4. Then, after ensuring any other necessary development has been accomplished and the VA examination reports are complete, readjudicate the Veteran's claims. If action remains adverse to the Veteran, provide him and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2009). ______________________________________________ SARAMAE KREITLOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs