Citation Nr: 1201351 Decision Date: 01/13/12 Archive Date: 01/20/12 DOCKET NO. 08-00 300A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. 3. Whether the Veteran has filed a timely appeal for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to September 1970 This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In an April 2007 rating decision, the RO denied service connection for hypertension, peripheral neuropathy, and erectile dysfunction, and special monthly compensation for loss of use of a creative organ. In May 2007, the Veteran filed a notice of disagreement (NOD) with the denial of service connection for hypertension, peripheral neuropathy, and erectile dysfunction. The RO issued a statement of the case (SOC) in December 2007, and the Veteran filed a substantive appeal (VA Form 9) in January 2008. In his substantive appeal, the Veteran indicated that he was only appealing the denial of service connection for hypertension and erectile dysfunction. Supplemental SOCs (SSOCs) were issued in February and May 2010. The Board points out that additional evidence has been received since the May 2010 SSOC; however, the RO did not issue a SSOC prior to certifying the appeal of service connection for hypertension and erectile dysfunction to the Board. See 38 C.F.R. § 19.37(a) (Evidence received prior to transfer of the records to the Board will be referred to appropriate rating or authorization activity for review and disposition. If the SOC and any prior SSOC were prepared before the receipt of the additional evidence, a SSOC will be furnished to the appellant and his or her representative unless it is duplicative or not relevant). In his November 2011 Brief, the Veteran's representative indicated that the Veteran would waive local jurisdiction on all evidence contained in the claims file subsequent to the May 2010 SSOC; however, the Board points out that the waiver provisions of 38 C.F.R. § 20.1304(c) only apply to evidence received by the RO or Board after certification. As regards hypertension, for the reasons explained below, the Board is granting service connection on the basis of aggravation. Hence, a remand for issuance of a SSOC is not necessary. As regards erectile dysfunction, for the reasons explained below, the Board is remanding this issue for further development, including readjudication and issuance of a SSOC if the benefits are not granted to the Veteran's satisfaction. In his November 2011 Brief, the Veteran's representative asserts that the issue of an increased rating for diabetes mellitus is also on appeal from an April 2005 rating decision; however, a review of the claims file reflects that the Board issued a December 2007 decision denying the appeal. Hence, this issue is no longer before the Board. The Veteran's representative also asserts that the issue of entitlement to a TDIU is also before the Board from an August 2009 rating decision. For the reasons explained below, however, the Board finds that the Veteran did not file a timely substantive appeal with respect to this issue. Hence, the Board lacks jurisdiction to consider this claim. The issue of service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was notified on August 7, 2009 of an August 2009 rating decision which denied entitlement to a TDIU. 2. The Veteran filed a NOD in September 2009 with the August 2009 rating decision, and was issued a SOC on May 21, 2010. 3. A substantive appeal was not received by the RO within one year of notification of the August 2009 rating decision. 4. Hypertension is aggravated by the Veteran's service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for a timely filed substantive appeal regarding entitlement to a TDIU have not been met. 38 U.S.C.A. § 7105 (West 2002), 38 C.F.R.§§ 20.200 , 20.202 (2011). 2. Aggravation of hypertension is the result of the service-connected diabetes. 38 U.S.C.A. § 1110;38 C.F.R. § 3.310 (prior to October 10, 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Jurisdiction of the Appeal of Entitlement to a TDIU The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2011). The timeliness and adequacy of substantive appeal is a jurisdictional matter and is governed by the interpretation of law. In such a case, the VCAA has no application. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In order for the Board to have jurisdiction to review a RO denial, there must be a timely substantive appeal. A timely substantive appeal initially requires that a written NOD be filed within one year after the date of notice of the RO denial. Next, the RO must issue a SOC on the matter being appealed. Finally, the appeal must be perfected by the filing of a VA Form 9 or other written equivalent thereof, indicating an intention to seek appeal to the Board. A timely substantive appeal is one filed in writing, within 60 days of the date of notice of the SOC, or within the remainder of the one-year period of the date of notice of the RO decision being appealed, whichever is later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2011). The Board has the authority to determine whether it has jurisdiction to review a case, and may dismiss any case over which it does not have jurisdiction. 38 U.S.C.A. § 7105(d) (3) (West 2002); 38 C.F.R. § 20.101(d) (2011). The agency of original jurisdiction (AOJ) may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32 (2011)), but a determination as to timeliness or adequacy of any such response for the purposes of appeal is in the province of the Board. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.101(d) (2011). In this case, the Veteran's representative has raised the issue of jurisdiction of the appeal of entitlement to a TDIU in his November 2011 Brief. He points out that the RO closed this issue because the Veteran failed to respond to the May 2010 SOC. He argues that a letter submitted by the Veteran in June 2010 constitutes a substantive appeal. In an August 2009 rating decision, the RO denied entitlement to a TDIU; notice was sent to the Veteran in a letter dated August 7, 2009. The Veteran filed a NOD with this decision in September 2009. The Veteran was furnished a SOC on May 21, 2010, along with a VA Form 9 and instructions as to how to file a formal appeal. He was notified that his appeal should address: the benefit he wanted; the facts in the SOC with which he disagreed; and the errors that he believed the RO made in applying the law. He was also informed that he must file his appeal within 60 days from the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he appealed. On June 4, 2010, the Veteran submitted a letter from Dr. Cosme, a private physician. In his November 2011 Brief, the Veteran's representative argues that this letter constituted the Veteran's substantive appeal and was in response to the May 2010 SOC. In the letter, Dr. Cosme stated, "[the Veteran] was diagnosed with the following Diabetes Type II, Hypertension, Hyperlipidemia, Bilateral Knee Osteoarthritis, and Morbid Obesity. At the present time his diagnosis will limit his ability to work. Any assistance you may provide [the Veteran] would benefit him and be greatly appreciated." On the letter, the Veteran hand wrote, "I was at the IHS Mescalero unit when the Dr. Cosmo wrote letter!! [sic]". A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals ", or correspondence containing the necessary information. 38 C.F.R. § 20.202. The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the arguments should be related to specific items in the SOC and any prior SSOCs. Id. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in determination, or determinations, being appealed. Id. In this case, the Board finds that the letter from Dr. Cosmo submitted in June 2010 did not constitute a substantive appeal. It did not set forth errors of fact or law in the August 2009 rating decision or May 2010 SOC nor did it even indicate an intent by the Veteran to continue with his formal appeal. In fact, it did not even reference the rating decision or SOC or the denial of a TDIU. The Veteran had until August 7, 2010 to file a substantive appeal with the issue addressed in the May 2010 SOC; however, the Board finds that no document received in the relevant time period constitutes a substantive appeal. During this time period, the Veteran filed claims for an increased rating diabetes mellitus and for service connection for a left knee condition and a stomach condition. He also submitted various private medical records relating to these claims. None of these documents assert an error of fact or law with regard to the RO's denial of entitlement to a TDIU. In view of the foregoing, the Board must find that no documentation was received from the Veteran that could constitute a valid substantive appeal pursuant to 38 C.F.R. § 20.202. Therefore, the Board must find that the Veteran did not perfect a timely appeal, and appeal regarding entitlement to a TDIU must be dismissed. Service Connection for Hypertension As noted above, the VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, as the Board is granting the claim for service connection for hypertension, there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The regulations also provide that service connection may 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). For certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from service. 38 C.F.R. § 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim because it was filed in May 2006. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). In this case, the Veteran does not assert nor does the evidence show that hypertension became manifest in service or within one year of discharge. In this regard, the Veteran's service treatment records reflect that his blood pressure at his January 1967 entrance examination was 104/80 and that his blood pressure at his September 1970 discharge examination was 130/88. VA records reflect that he was first diagnosed with hypertension in November 2000. The Veteran asserts that his hypertension is secondary to his diabetes mellitus. The report of a July 2003 VA examination reflects that the Veteran was diagnosed with diabetes mellitus in November 2000. An April 2001 private medical record notes that he had insulin resistant early diabetes. The July 2003 VA examiner opined that hypertension was likely secondary to morbid obesity. The report of an August 2010 VA examination reflects that the Veteran had been diagnosed with hypertension. The examiner opined that this was not a complication of diabetes, but was a condition that was worsened or increased by the Veteran's diabetes. The examiner further explained that there was potential for aggravation of hypertension if diabetes was in poor control and that vascular impairment can occur. Although the August 2010 VA examiner did not render an opinion as to the extent that the Veteran's hypertension was aggravated by diabetes, he clearly indicated that it was worsened or increased. In light of this medical opinion, the Board finds that service connection for hypertension, on the basis of aggravation, is warranted. ORDER As a substantive appeal was not timely filed, the Board lacks jurisdiction to consider the claim for entitlement to a TDIU which the RO denied in August 2009, and the appeal is dismissed. Entitlement to service connection (aggravation) for hypertension is granted. REMAND The Veteran asserts that he has erectile dysfunction secondary to his service-connected diabetes mellitus. As noted above, the Veteran was diagnosed with diabetes in November 2000. On May 2006 VA examination, the Veteran reported that he had a history of erectile dysfunction since 2002, but was not being treated for it. The examiner diagnosed the Veteran with erectile dysfunction but opined that it was not secondary to diabetes. The rationale provided by the examiner was that the Veteran's diabetes was "only barely 5 years" and that the Veteran was a heavy drinker in the past. In his November 2011 Brief, the Veteran's representative argues that the May 2006 VA examiner's rationale was inadequate. The Board agrees. There is no explanation, nor is it plainly evident, as to why the length of time the Veteran has had diabetes would have any bearing on whether it causes or aggravates erectile dysfunction. There is also no explanation given for the suggestion that the Veteran's erectile dysfunction is a result from heavy drinking in the past, especially considering that it was noted that he stopped drinking in the 1980s. In addition, as set forth in the decision above, service connection has been granted for hypertension, which could also affect erectile dysfunction. For these reasons, the Board finds that another VA examination is needed to make a determination on this claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Prior to arranging for the Veteran to undergo VA examination, the RO should obtain and associate with the claims file all outstanding VA treatment records, if any. The Veteran has been treated at the Albuquerque VA Medical Center (VAMC) in the past. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain from the Albuquerque VAMC, and any other VA facility, all outstanding records of evaluation and/or treatment for the Veteran's erectile dysfunction, hypertension, and erectile dysfunction. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. After all records and/or responses received are associated with the claims file, the Veteran should be afforded a VA examination to determine the etiology of erectile dysfunction. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or great probability) that any of the Veteran's service-connected disabilities (specifically, diabetes mellitus and hypertension) cause or aggravate his erectile dysfunction. The examiner should provide a complete rationale for his/her opinion. The examiner should set forth all examination findings (if any), along with complete rationale for the opinion provided, in a printed (typewritten) report. 3. Following completion of all indicated development, the RO/AMC should review and readjudicate the claim remaining on appeal. If any benefit sought on appeal is not granted, the RO/AMC shall issue a SSOC and afford the Veteran and his representative an opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or 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. 2011). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs