Citation Nr: 1301689 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 05-33 735 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for diabetes mellitus, type II. 4. Entitlement to service connection for a penile infection. 5. Entitlement to service connection for a left leg disorder. 6. Entitlement to service connection for high cholesterol. 7. Entitlement to service connection for hypertension. 8. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 9. Entitlement to a rating in excess of 10 percent for right thigh shrapnel wound, muscle group XV. 10. Entitlement to a total rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to September 1967. He has been awarded a Purple Heart Medal and a Combat Infantryman Badge for service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge at a September 2012 hearing. At that hearing claims were raised seeking service connection for disabilities of the knees. These issues are referred to the RO for appropriate action. The issues of entitlement to service connection for a left leg disability, entitlement to service connection for hypertension, entitlement to an initial rating in excess of 50 percent for PTSD, entitlement to a rating in excess of 10 percent for right thigh shrapnel wound, muscle group XV, and a TDIU, 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. It is at least as likely as not that the Veteran's hearing loss is due to acoustic trauma in service. 2. It is at least as likely as not that tinnitus is due to a disease or injury in service. 3. The Veteran was not shown to have a current diagnosis of diabetes mellitus, type II. 4. A penile infection was not shown to be related to a disease or injury in service and is not shown to have been treated repeatedly. 5. High cholesterol is a laboratory result and not a disability for which service connection may be granted. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. With resolution of reasonable doubt in the Veteran's favor, tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. Diabetes mellitus, type II, was not incurred in or aggravated by service nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 4. A penile infection was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 5. High cholesterol is not a disability for which service connection may be granted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012), 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in May 2005, prior to the rating decisions at issue, which explained how VA could assist him with obtaining evidence in support of his claims. The May 2005 letter also explained what was needed in order to establish service connection for a claimed disability. The Veteran was not provided the notice required by Dingess. However, this is harmless as to the claims which are granted herein since the benefit sought is granted in full. It is harmless as to the claims which are denied because no rating or effective date will be assigned for those claimed disabilities. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, private treatment records, and a transcript of the October 2012 hearing. It is noted that in the REMAND section below, records are sought from the Social Security Administration concerning disability benefits reportedly awarded. Receipt of those records prior to the determinations entered herein is not necessary. As to the claims allowed the records would make no difference. Diabetes has not been clinically established and was not the reported reason disability was awarded, so the records have no effect on that claim. Similarly, a chronic penile infection has not been shown, and was not reported to have had anything to do with the benefits awarded. Finally, high cholesterol is a laboratory finding not a disability, and nothing in the Social Security records would change that finding. The Veteran was provided adequate examinations with respect to his claims for hearing loss and tinnitus. The Veteran was not afforded a VA examination with respect to his claims for service connection for diabetes, a penile infection, or high cholesterol. In this regard, the Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examinations in support of these claims because there is no indication of a current disability which may be related to military service. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including sensorineural hearing loss and diabetes, may be granted if manifest to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Hearing Loss and Tinnitus The Veteran asserts that he has hearing loss and tinnitus as a result of his military service. A VA examination in August 2005 did not show hearing loss as that term is defined by 38 C.F.R. § 3.385. The examiner opined that tinnitus was not due to military service because it onset 30 years after service. The Veteran was reexamined with respect to his claimed hearing loss and tinnitus in August 2012. At that time, hearing loss was shown. The diagnosis was bilateral sensorineural hearing loss. The examiner opined that it was at least as likely as not that hearing loss was due to military service. The examiner also opined that it was at least as likely as not that the tinnitus was a symptoms associated with hearing loss. Given this information, it is at least as likely as not that hearing loss was incurred in military service. The only medical opinion of record on this issue attributes hearing loss to loud noise exposure in service. It is also at least as likely as not that tinnitus is due to military service. The examiner who performed the August 2012 evaluation associated the Veteran's tinnitus with his hearing loss. Service connection for hearing loss and tinnitus are granted. Diabetes Mellitus The Veteran contends that he has diabetes related to his military service. While diabetes is subject to presumptive service connection for Vietnam veterans, in this case the Veteran has not been shown to have diabetes. Available treatment records show impaired glucose tolerance, but no formal diagnosis of diabetes. At his hearing, the Veteran testified that he had been told he had "borderline diabetes" which commonly refers to impaired glucose tolerance. Service connection for diabetes is not in order until the evidence shows that the Veteran actually has been diagnosed with this disability. The Board considered the benefit of the doubt, however, the preponderance of the evidence is against this claim. Service connection for diabetes is denied. Penile Infection The Veteran contends that he has a penile infection as a result of his service, including exposure to herbicides. With regard to claims alleging disability due to exposure to herbicides, a Veteran who served in active military, naval, or air service in Vietnam during the Vietnam era is presumed to have been exposed to a herbicide agent during such service, unless there is affirmative evidence that the Veteran was not exposed to any such agent during that service. Service in Vietnam includes service in the waters offshore Vietnam and service in other locations if the conditions of service required the Veteran to perform duty in, or visit, Vietnam. 38 U.S.C.A. § 1116(f), 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to a herbicide agent, certain diseases listed at 38 C.F.R.§ 3.309(e) will be considered service connected even though there is no record of such disease in service. VA determined that there is no positive association between exposure to herbicides and any condition other than those for which the Secretary specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994), 61 Fed. Reg. 41442-41449,. 57586-57589 (1996). Penile infections are not one of the diseases associated with Agent Orange exposure. Notwithstanding the foregoing, a Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). However, the Veteran has not offered any evidence, other than his own assertion, that his penile infection is related to herbicide exposure. The Veteran is not competent to offer a medical opinion as to the etiology of his penile infection as it relates to herbicide exposure. A penile infection was not shown in service treatment records. At his hearing the Veteran testified that he did not remember whether he had penile infections in service. There is an isolated finding of a fungal infection of the foreskin of the penis that was treated with a cream. Continuing or chronic disability has not been shown and the only finding was many years after service and is not shown by any credible evidence to be related thereto. The benefit of the doubt was considered, but the evidence weighs against this claim. Insofar as there is no evidence that the Veteran's penile infections are due to his service, including exposure to herbicides, service connection for this disorder is denied. High Cholesterol The Veteran contends that he developed high cholesterol as a result of his military service. The Veteran's post-service medical records do show that he has been assessed as having high cholesterol or hyperlipidemia. However, hyperlipidemia or elevated serum (blood) cholesterol is not a disability for which VA compensation benefits are payable. Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). It is also pertinent to note that the term "disability," as used for VA purposes, refers to a disorder resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that based on the definition found in 38 C.F.R. § 4.1 , the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself"). The Board has reviewed the evidence of record thoroughly, but finds that it does not establish or even suggest that the Veteran's high cholesterol is instead a manifestation of, or that it is associated with, an underlying pathologic process that itself is a disability. Nor has the Veteran made such an assertion. Accordingly, because the appellant does not have a current disability for which service connection may be granted, the Board concludes that the preponderance of the evidence is against this claim. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for diabetes mellitus type II is denied. Service connection for a penile infection is denied. Service connection for high cholesterol is denied. REMAND Review of the records indicates that in July 2008 the Veteran's neurologist offered the opinion that the Veteran developed a "pain syndrome" in his left leg due to his service connected right thigh shrapnel wound. VA treatment records note lower left leg and knee pain but do not actually diagnose a disability. The Veteran should be afforded a VA examination to determine the nature and etiology of any left leg disorder. McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006). With regard to the Veteran's claim that he has high blood pressure, VA treatment records show hypertension. The Veteran has asserted this was caused or aggravated by PTSD. The Veteran is service connected for PTSD. Therefore, he should be afforded a VA examination to determine the etiology of his hypertension. See McClendon, 20 Vet. App. at 86. With regard to the Veteran's right thigh wound, at his hearing in September 2012 the Veteran testified he received Social Security disability as a result of his right thigh injury. Therefore, these records are relevant to the Veteran's claim that his right thigh disability is more than 10 percent disabling. Additionally, although new evidence including VA treatment records, private treatment records, and new examinations have been added to the claims file over the years, no supplemental statement of the case has been issued since July 2006. The Veteran must be given the opportunity to have the RO review this evidence in the first instance. Similarly, with regard to the Veteran's PTSD claim, no supplemental statement of the case has been issued since July 2006, although new treatment records and examinations have been added to the claims file after that time. A remand is necessary to enable to RO to consider this information in the first instance. Finally the issue of a TDIU has been raised and pursuant to judicial guidance, must be considered as part of this claim. Thus that issue is also raised. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's Social Security Administration (SSA) disability file. If records do not exist of have been destroyed, all attempts to obtain the records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain the records. 2. Afford the Veteran a VA examination of his left knee. The examiner should review the claims file in conjunction with the examination. The examiner should indicate whether the Veteran presently has a diagnosis related to his left leg. If a left leg disorder is diagnosed, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) caused or made worse due to his service connected right thigh injury. The examiner should provide a complete rationale for his or her conclusions in the report of examination. If the examiner is unable to provide the requested opinion, he or she should explain why this is the case. 3. Afford the Veteran an appropriate VA examination to address the etiology of his hypertension. If hypertension is diagnosed, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that it is caused or aggravated by the Veteran's PTSD. The examiner should provide a complete rationale for his or her conclusions in the report of examination. If the examiner is unable to provide the requested opinion, he or she should explain why this is the case. 4. Thereafter, all of the Veteran's claims should be readjudicated, with consideration given to the new evidence that has been added to the claims file since July 2006. This readjudication should include the TDIU claim. To the extent additional notice or examination or other development is indicated, that should be done prior to readjudication. If the benefits remain denied, or the decision is less than fully favorable to the Veteran, he and his representative should be given a supplemental statement of the case and the opportunity to respond thereto. 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. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs