Citation Nr: 1305977	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  03-23 052	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for bad blood circulation of the arms, to include as secondary to the service-connected diabetes mellitus type II.

3.  Entitlement to service connection for hypertension, to include as secondary to the service-connected diabetes mellitus type II.

4.  Entitlement to service connection for a heart disorder, to include as secondary to the service-connected diabetes mellitus type II.

5.  Entitlement to service connection for radiculopathy of the right upper extremity, to include as secondary to the service-connected diabetes mellitus type II.

6.  Entitlement to service connection for radiculopathy of the left upper extremity, to include as secondary to the service-connected diabetes mellitus type II.

7.  Entitlement to service connection for radiculopathy of the right lower extremity, to include as secondary to the service-connected diabetes mellitus type II.

8.  Entitlement to service connection for radiculopathy of the left lower extremity, to include as secondary to the service-connected diabetes mellitus type II.

9.  Entitlement to service connection for a kidney disorder, to include as secondary to the service-connected diabetes mellitus type II.

10.  Entitlement to service connection for a liver disorder, to include as secondary to the service-connected diabetes mellitus type II.

11.  Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II.

12.  Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the right upper extremity.

13.  Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the left upper extremity.

14.  Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the right lower extremity.

15.  Entitlement to an initial rating in excess of 10 percent for diabetic neuropathy of the left lower extremity.

16.  Entitlement to a compensable rating for service-connected atherosclerotic aorta by X-ray.

17.  Entitlement to an initial compensable rating for service-connected erectile dysfunction.

18.  Entitlement to a higher level of special monthly compensation based on the loss of use of a creative organ.
  
19.  Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

John Kitlas, Counsel


INTRODUCTION

The Veteran served on active duty from May 1965 to June 1967. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in November 1987, March 2006, and July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  The November 1987 rating decision denied the Veteran's claim of service connection for PTSD, and the Board has previously determined that he perfected an appeal as to that decision.  The March 2006 rating decision established service connection for diabetes mellitus, type II, evaluated as 20 percent disabling.  All other claims were addressed by the July 2009 rating decision.

The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Id. at 5.  Accordingly, the issue has been recharacterized as reflected on the title page, which will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons.  The Veteran filed his claim for service connection for a psychosis in 1984, following the Board's denial of service connection for a nervous disorder in 1973.  It is also noted that the RO again denied service connection for a nervous disorder, on August 13, 1973, and notified the Veteran along with notice of his appellate rights.  The Veteran filed an untimely notice of disagreement on August 19, 1974.  When the Veteran filed his claim for service connection in 1984, the applicable criteria did not require the submission of new and material to reopen a claim for a previously denied benefit.  See 38 C.F.R. § 1156 (3.156(A)) (1984); see also VA Regulations, Compensation and Pension, Transmittal Sheet 268, Dec. 1, 1962.  Accordingly, the Board need not consider whether new and material evidence has been presented to reopen the previously denied claim.  

The Veteran provided testimony regarding his claim of service connection for PTSD at a hearing before personnel at the RO in January 1989.  A transcript of this hearing has been associated with the Veteran's VA claims folder.

The Board further notes that as part of an October 2010 Substantive Appeal the Veteran checked the box to indicate that no hearing was desired in this case.  However, the body of the Substantive Appeal also contains the words "schedule a hearing."  Accordingly, correspondence was sent to the Veteran in May 2012 requesting clarification as to his desire for a hearing.  He responded later that month that he did not wish to appear at a hearing, and that he wanted the Board to consider his case based on the evidence of record.

The Board also notes that the Veteran initiated an appeal to a February 2010 rating decision which severed service connection for glaucoma, effective May 1, 2010.  However, a subsequent February 2011 rating decision restored service connection for glaucoma, effective from May 1, 2010.  

This case was previously before the Board in December 2008, at which time the Board only addressed the issue of service connection for PTSD.  The Board remanded the case for further development, to include obtaining VA medical records, records from the Social Security Administration (SSA), verifying the Veteran's purported stressor(s) through official channels, and according the Veteran an examination to evaluate the nature and etiology of any acquired psychiatric disorder found to be present.

For the reasons addressed in the REMAND portion of the decision below, further development is required with respect to the Veteran's claims of service connection for hypertension and an acquired psychiatric disorder to include PTSD, as well as his claim of entitlement to a TDIU.  Accordingly, these claims are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.

As an additional matter, the Board notes that the Veteran has indicated he is entitled to service connection for bad blood circulation of the lower extremities, and the RO only adjudicated whether service connection was warranted for such a disability of the upper extremities.  See the Veteran's January 2008 statement.  The Veteran has also indicated that he is entitled to Chapter 31 benefits.  See the Veteran's June 2009 statement.  The documents assembled for the Board's review do not indicate either of these claims were adjudicated by the Agency of Original Jurisdiction (AOJ).  Accordingly, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.



FINDINGS OF FACT

1.  All reasonable notification and development necessary for the equitable disposition of the issues adjudicated by this decision have been completed.

2.  The competent medical evidence does not reflect the Veteran has a chronic heart disorder or a disability manifested by bad blood circulation of the arms.

3.  The competent medical evidence does not reflect the Veteran has radiculopathy of the upper and/or lower extremities.  Although he does have impairment of these extremities, it has been attributed to his already service-connected diabetic neuropathy of said joints.

4.  The competent medical evidence does not reflect the Veteran has a kidney disorder.

5.  The competent medical evidence does not reflect the Veteran has a liver disorder.  

6.  Although the veteran's service-connected diabetes mellitus requires insulin and restricted diet, it has not resulted in regulation of activities. 

7.  The Veteran's service-connected diabetic neuropathy of the right upper extremity is not manifested by more than mild incomplete paralysis. 

8.  The Veteran's service-connected diabetic neuropathy of the left upper extremity is not manifested by more than mild incomplete paralysis. 

9.  The Veteran's service-connected diabetic neuropathy of the right lower extremity is not manifested by more than mild incomplete paralysis. 

10.  The Veteran's service-connected diabetic neuropathy of the left lower extremity is not manifested by more than mild incomplete paralysis. 

11.  The Veteran's service-connected atherosclerotic aorta by X-ray is not manifested by arterial claudication; nor symptoms of syncope, fatigue, angina, dizziness, or dyspnea.

12.  The Veteran's service-connected erectile dysfunction is manifested by loss of erectile power, but not by deformity of the penis.

13.  The Veteran is in receipt of the maximum level of SMC for loss of use of a creative organ.


CONCLUSIONS OF LAW

1.  Service connection is not warranted for bad blood circulation of the arms, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

2.  Service connection is not warranted for a heart disorder, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

3.  Service connection is not warranted for radiculopathy of the right upper extremity, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

4.  Service connection is not warranted for radiculopathy of the left upper extremity, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

5.  Service connection is not warranted for radiculopathy of the right lower extremity, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

6.  Service connection is not warranted for radiculopathy of the left lower extremity, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

7.  Service connection is not warranted for a kidney disorder, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

8.  Service connection is not warranted for a liver disorder, to include as secondary to the service-connected diabetes mellitus type II.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012).

9.  The criteria for an initial rating in excess of 20 percent for the veteran's service-connected diabetes mellitus are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.119, Diagnostic Code 7913 (2012). 

10.  The criteria for an initial rating in excess of 10 percent for diabetic neuropathy of the right upper extremity are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2012).

11.  The criteria for an initial rating in excess of 10 percent for diabetic neuropathy of the left upper extremity are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8615 (2012).

12.  The criteria for an initial rating in excess of 10 percent for diabetic neuropathy of the right lower extremity are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8620 (2012).

13.  The criteria for an initial rating in excess of 10 percent for diabetic neuropathy of the left lower extremity are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.124a, Diagnostic Code 8620 (2012).

14.  The criteria for a compensable rating for the Veteran's service-connected atherosclerotic aorta by x-ray are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.31, 4.104, Diagnostic Code 7005-7114 (2012).

15.  The criteria for an initial compensable rating for service-connected erectile dysfunction are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.31, 4.10, 4.115b, Diagnostic Code 7522 (2012).

16.  The Veteran is in receipt of the highest level of SMC for loss of use of creative organ.  38 U.S.C.A. §§ 1114, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.350, 4.1, 4.2, 4.10 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

The Board notes that the Veteran's appeal regarding his diabetes mellitus type II, diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta by X-ray, erectile dysfunction and SMC for loss of use of creative organ originate from disagreement with the initial ratings assigned for these disabilities following the establishment of service connection.  In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Thus, VA's duty to notify in this case is satisfied.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).

Regarding the service connection claims adjudicated by this decision, the Court has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the Veteran was sent pre-adjudication notice via a letter dated in March 2009, which is clearly prior to the July 2009 rating decision that initially adjudicated these claims.  In pertinent part, this letter informed the Veteran of what was necessary to substantiate a service connection claim to include secondary service connection claims, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case.  As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra.  Moreover, the March 2009 letter included information regarding disability rating(s) and effective date(s) as mandated by the holding in Dingess, supra.

(The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.   See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).   The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.   The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.   See 38 C.F.R. § 3.159(b)(1).)

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.  In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied with respect to the issues adjudicated by this decision.  The Veteran's service treatment records are on file, as are various post-service medical records.  Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested.  For example, as detailed below, the Board finds that the competent medical evidence does not reflect the Veteran has a heart disorder, disability manifested by bad blood circulation of the arms, radiculopathy of the upper and/or lower extremities, a kidney disorder, or a liver disorder.  He has not identified any competent medical evidence not of record which indicates he does have such disabilities.  Further, he has not indicated that there is outstanding evidence documenting signs or symptoms of his service-connected disabilities that is not demonstrated by the evidence already of record.  

The Board acknowledges that the Veteran did provide testimony at a hearing before personnel at the RO in January 1989.  Further, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  However, as noted in the Introduction, this hearing was in regard to the claim of service connection for PTSD which the Board has determined warrants a remand in this case.  Therefore, discussion of that hearing in light of Bryant is not warranted at this time.  As detailed in the Introduction, the Veteran has indicated that no other hearing is desired in the instant case, and that he wanted the Board to proceed with his case based on the evidence of record.

The Board further notes that the Veteran was accorded VA medical examinations in July 2006 and June 2009, which included relevant findings for adjudication of the present appellate claims.  As detailed below, these examinations reflect the Veteran does not have a heart disorder to include bad blood circulation of the arms, radiculopathy of the upper and/or lower extremities, a kidney disorder, or a liver disorder.  Further, there are also findings documenting the symptomatology of the service-connected diabetes mellitus type II, diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta, and erectile dysfunction which are consistent with the treatment records and relevant rating criteria.  The Veteran has not indentified any inaccuracies or prejudice with respect to these examinations. 

The Veteran did indicate in an August 2010 statement that a new examination was desired for his heart disorder claim due to changes in the Agent Orange regulations.  This is presumed to be in reference to the addition of ischemic heart disease to the list of conditions presumptive associated with Agent Orange/herbicide exposure.  See 75 Fed. Reg. 53,202 (2010).  However, as detailed below, the record does not reflect the Veteran has been diagnosed with any chronic heart disorder, to include ischemic heart disease.  As such, the revised regulatory provisions would not support the benefit sought on appeal, or otherwise warrant a new examination.

The Veteran also indicated in his December 2010 Substantive Appeal that new examinations were warranted because it had been more than one year since the last examination.  However, he did not indicate there was evidence of current disabilities regarding the service connection claims, nor did he expressly indicate that his service-connected diabetes mellitus, diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta, and/or erectile dysfunction had actually increased in severity since the most recent examinations.  As such, the simple passage of time would not warrant new examinations in the absence of evidence suggesting different and/or increased symptomatology had developed.

For these reasons, the Board finds that the aforementioned VA examinations are adequate for resolution of this case.  The Board also reiterates that the Veteran did subsequently indicate in May 2012 that he wanted the Board to consider his case based on the evidence of record.

In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that 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).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. § 5107(b).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.  38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

II.  Service Connection

Legal Criteria

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  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 disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

The Veteran has contended, in part, that his claimed disabilities are secondary to his service-connected diabetes mellitus type II.  Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disability. A disability that is proximately due to or the result of a service-connected disease or injury shall also be service connected.  38 C.F.R. 
§ 3.310(a) . 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) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown , 7 Vet. App. 439, 448   (1995) (en banc).

The Board acknowledges that the provisions of 38 C.F.R. § 3.310 were revised during the pendency of this case, and are effective from October 10, 2006.  See 71 Fed. Reg. 52,744-52,747 (September 7, 2006).  Pursuant to 38 C.F.R. § 3.310(b), an increase in the 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.  Id.  

Analysis

In the instant case, and for the reasons stated below, the Board finds that the preponderance of the evidence is against the Veteran's claims of service connection for a heart disorder to include bad blood circulation of the arms, radiculopathy of the upper and/or lower extremities, a kidney disorder, or a liver disorder.

As an initial matter, the Board acknowledges that the Veteran, as a lay person, is competent to describe his symptomatology.  However, the nature of the disabilities for which he is seeking service connection involve medically complex issues and specifically medical testing to diagnose, and, if he does have such disability, to determine the etiology thereof.  In other words, competent medical evidence is necessary to resolve these claims.  Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion.  Consequently, his contentions cannot constitute competent medical evidence.  38 C.F.R. § 3.159(a)(1).

In this case, the competent medical evidence does not reflect the Veteran has a chronic heart disorder, a disability manifested by bad blood circulation of the arms; a kidney disorder; or a liver disorder.  Further, the competent medical evidence does not reflect the Veteran has radiculopathy of the upper and/or lower extremities.  Although he does have impairment of these extremities, it has been attributed to his already service-connected diabetic neuropathy of said extremities.

The Board notes, in pertinent part, that the Veteran was accorded a VA medical examination in July 2006 for the specific purpose of evaluating his claimed hypertension.  However, as noted on this examination report, there was no evidence of diagnosis nor treatment for hypertension in the available files.  Further, after evaluation of the Veteran, the examiner concluded that there was no evidence of hypertension on available files nor in this examination.  No other heart disorder was diagnosed on this examination.

The Board also notes that the Veteran was accorded multiple VA medical examinations in July 2009 for the specific purpose of determining whether he had a heart disorder, bad circulation of the upper extremities, kidney disorder, liver disorder, and/or radiculopathy and, if so, whether they were secondary to his service-connected diabetes mellitus type II.

As part of a subsequent VA arteries, veins and miscellaneous examination conducted in June 2009, it was noted that the Veteran claimed, in part, that he had poor circulation as a consequence of his diabetes.  The examiner found that the Veteran did not have Reynaud's or aneurysms.  Additionally, the examiner stated that evaluation for varicose veins and post-phlebitic syndrome, soft tissue sarcoma or other malignant neoplasms of vascular origin were not applicable in this case.  Moreover, the examiner found that there was no evidence of poor circulation in the upper extremities, and opined that the Veteran was most likely suffering from a peripheral neuropathy.  The Board reiterates that service connection is already in effect for diabetic neuropathy of the upper and lower extremities.  

A June 2009 VA heart examination concluded, following evaluation of the Veteran to include medical testing, that there was no evidence of a heart condition on this examination.

As part of a June 2009 VA genitourinary examination conducted in June 2009, it was noted, in part, that a kidney condition had not been established and there was no indication of any treatment for such a condition.  Following evaluation of the Veteran, the examiner concluded that there was no evidence of a medical kidney condition on this examination.  

A June 2009 VA liver, gall bladder, and pancreas examination, concluded that there was no evidence of liver disease on this examination.

Finally, the Board observes that a June 2009 VA peripheral nerves examination concluded that there were clinical symptoms and signs of mild, primarily sensory, peripheral neuropathy of the upper and lower extremities with a mild motor component in the uppers.  However, there was no clinical history or neurological evidence of radiculopathy.

The Board further notes that there is no indication of the claimed heart, bad blood circulation of the upper extremities, radiculopathy of the upper and lower extremities, a kidney disorder, or a liver disorder in the medical treatment records on file.  For example, treatment records dated in January 2006 and January 2010 noted that on review of systems, the Veteran's cardiovascular and genitourinary systems were negative for any disease or disability.  His cardiovascular system was also evaluated as negative by treatment records dated in July 2008.

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. §§ 1110, 1131; and see Brammer v. Derwinski, 3 Vet. App. 223 (1992).  In Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997), it was observed that 38 U.S.C.A § 1131, as well as other relevant statutes, only permitted payment for disabilities existing on and after the date of application for such disorders.  The Federal Circuit observed that the structure of these statutes "provided strong evidence of congressional intent to restrict compensation to only presently existing conditions," and VA's interpretation of the law requiring a present disability for a grant of service connection was consistent with the statutory scheme.  Degmetich, 104 F.3d at 1332; and see Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding VA's interpretation of the provisions of 38 U.S.C.A § 1110 to require evidence of a present disability to be consistent with congressional intent); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (the law limits entitlement for service-related diseases and injuries to cases where the underlying in-service incident has resulted in a disability).  Simply put, in the absence of proof of present disability there can be no valid claim.  

The Board acknowledges that the Court held in McLain v. Nicholson, 21 Vet. App. 319 (2007) that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication.  In this case, however, the record does not reflect the Veteran has had a heart disorder, bad blood circulation of the upper extremities, radiculopathy of the upper and lower extremities, a kidney disorder, or a liver disorder at any time during the pendency of these claims.  Moreover, as detailed above, he was accorded VA medical examinations for the specific purpose of evaluating these claims, and based upon both a review of his claims folder and medical evaluation, it was concluded that he does not have these specific disabilities.  Moreover, even if the Veteran were competent to diagnose the claimed disabilities and the Board were to find his statements credible and competent, they are outweighed by the more probative medical evidence.  The reason for this is that VA clinicians conducted examinations and testing specifically to determine whether the Veteran has the claimed disabilities and determined that he does not.  

The Board notes that the 2009 examiner found that there was no microalbuminuria present and therefore there was no diabetic nephropathy.  Several months later, in August 2009, microalbuminuria was found.  Follow up testing was to be conducted in two months.  The clinician reinforced diet and exercise with the Veteran.  An October 2009 VA medical record indicates that no more microalbuminuria was present and that the diabetes mellitus was controlled.  Although microalbuminuria was found on one occasion, this is a laboratory finding, for which service connection is not warranted.  As kidney disease was not diagnosed at any time during the pendency of the claim, the preponderance of the evidence is against finding that the Veteran has a kidney disorder.    

Inasmuch as the Veteran does not have the claimed disabilities, no determination is warranted regarding his contentions of secondary service connection pursuant to 38 C.F.R. § 3.310.

For the reasons stated above, the Board concludes that the preponderance of the evidence is against these service connection claims.  As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case.  See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).  Consequently, the benefit sought on appeal with respect to these claims must be denied.

III.  Higher Ratings

General Legal Criteria

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability.  Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  More recently, the Court held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

With regard to the Veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31 .


Analysis - Diabetes Mellitus

Pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, a 10 percent rating is warranted when diabetes mellitus is manageable by restricted diet only. A 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or: oral hypoglycemic agent and restricted diet.  A 40 percent rating is warranted where there is a requirement for insulin, restricted diet, and regulation of activities.  A 60 percent rating is warranted where there is a requirement for insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent rating is warranted where there is a requirement for more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 

The Board acknowledges that the record, to include the June 2009 VA diabetes mellitus examination, as well as various treatment records, confirm the Veteran's service-connected diabetes is treated with oral medication throughout the pendency of this appeal.  Moreover, the June 2009 VA examination also noted that he had a restricted diet.  However, the examiner specifically found that the Veteran was not restricted in his ability to perform strenuous activities.  There is also no indication of any such impairment in the treatment records or other evidence on file.  In fact, in August 2009, a VA clinician reinforced with the Veteran the need for exercise.  

The Board has carefully considered the Veteran's statements in this case, but while he indicated a higher rating was warranted he has not identified the type of restriction in strenuous activities contemplated by the criteria for a higher rating.  He did indicate that his diabetes mellitus, combined with his other service-connected disabilities, had rendered him unemployable.  However, this goes to whether a TDIU is warranted, which is addressed in the REMAND portion of the decision below.

In view of the foregoing, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 20 percent for his service-connected diabetes mellitus type II.

Analysis - Diabetic Neuropathy

Under the laws administered by VA regarding disabilities of the upper extremities, a distinction is made between major (dominant) and minor upper extremity for rating purposes.  In the instant case, as stated above, the Veteran's right upper extremity is considered the major upper extremity.

The Veteran's diabetic neuropathy of the upper extremities is evaluated  pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8615 (neuritis of the median nerve).  Under this Code, mild incomplete paralysis warrants a 10 percent evaluation for both the major and minor side.  Moderate incomplete paralysis warrants a 30 percent evaluation on the major side and 20 percent for the minor side.  Severe incomplete paralysis of the major side warrants a 50 percent rating, and a 40 percent rating for the minor side. Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand, pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, index and middle fingers remain extended, cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm, flexion of wrist weakened, and pain with trophic disturbances, warrants a 70 percent evaluation on the major side and a 60 percent rating for the minor side.

The Veteran's diabetic neuropathy of the lower extremities is evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8620, which provides the rating criteria for neuritis of the sciatic nerve.  Under this Code, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating requires moderate incomplete paralysis of the sciatic nerve; a 40 percent rating requires moderately severe incomplete paralysis; a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy; an 80 percent rating requires complete paralysis of the sciatic nerve.  When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a. 

In this case, the Board finds that the Veteran's service-connected diabetic neuropathy has not resulted in moderate incomplete paralysis of the upper or lower extremities.  On objective evaluation of these disabilities, the evidence indicates no more than mild functional impairment of the affected joints.  For example, as part of the June 2009 VA diabetes mellitus examination, neurologic evaluation conducted as part of this examination showed no motor loss on the right or left; cranial nerve was normal on the right and left; deep tendon reflexes were all 2+ on the right and left.  He was found to have sensory loss, which was described as mildly decreased (subjective) monofilament and vibratory sensation in both feet, but normal in the hands.

At the June 2009 VA peripheral nerves examination, the Veteran described decreased grip power in the hands, and cold sensation of the feet.  On motor examination, he was found to have normal power in the lower extremities.  His upper right and left extremities were found to have decreased hand grip and pinzer grasp, but his overall muscle strength was found to be 4.  Sensory function report of the right and left upper and lower extremities noted decreased vibration, pain, and light touch with the location of such abnormalities being distally.  Position sense was normal.  Reflex exam indicated that right and left knee reflex was 1+, left ankle reflex was 1+, but that left plantar flexion was normal, and all other reflexes were 2+.  No muscle atrophy was found to be present.  Moreover, it was indicated that no function of any joint was affected by the nerve disorder, and that the Veteran's gait and balance were normal.  Further, as already noted, the examiner concluded that there were clinical symptoms and signs of mild, primarily sensory, peripheral neuropathy of the upper and lower extremities with a mild motor component in the uppers.  (Emphasis added).

The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  Moreover, the use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.  

In short, the Board is not bound by the VA peripheral nerves examiner use of the term "mild" in describing the severity of the Veteran's service-connected diabetic neuropathy of the upper and lower extremities.  Nevertheless, it is an element for consideration, and reinforces the fact that the objective medical findings on evaluation of the service-connected disability indicates at most mild functional impairment.  The Veteran experiences normal strength in the lower extremities, has decreased sensation distally, and has 1+ reflexes in the knees and left ankle.  As sensation is only reduced distally, strength is normal, and as reflexes of the knees and left ankle are only reduced, no more than mild disability is shown in the lower extremities.  Regarding the upper extremities, strength of 4 and decreased sensation distally is indicative of mild disability.  The evidence, including the examiner's assessment of mild disability, indicates that greater disability is not shown.  The examiner's findings and conclusion are entitled to probative weight as an examination was conducted and detailed findings were reported such that the Board can render an informed determination.  The Veteran asserts that he has pain and cramping in his hands and legs and that it feels as if he has "ants in the feet."  While the Veteran's assertions regarding symptoms are considered competent, probative and credible, these sensory disturbances were not described by the Veteran as greater than mild in degree.  Accordingly, the sensory loss experienced by the Veteran, as demonstrated by the evidence as a whole, more nearly approximates mild incomplete paralysis.  As such, the Board finds that the Veteran does not have moderate incomplete paralysis of any of his upper or lower extremities.  Therefore, his claims for initial ratings in excess of 10 percent must be denied.

Analysis - Atherosclerotic Aorta by X-ray

The Veteran's service-connected atherosclerotic aorta by X-ray is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7114, which provides that a claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachia index of 0.9 or less warrant a 20 percent rating.  Claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less warrant a 40 percent rating.  A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less.  A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less.

In this case, a thorough review of the evidence of record, to include VA medical examinations and treatment records, does not reflect the Veteran has experienced arterial claudication.  As noted above, the June 2009 VA arteries, veins, and miscellaneous examination found no evidence of poor circulation.  Further, no cardiovascular symptoms were noted on the June 2009 VA heart examination.  Moreover, the atherosclerotic aorta was established based solely on X-ray findings rather than any findings of claudication.  

The Board also notes that in the October 2010 Statement of the Case (SOC), the RO considered Diagnostic Code 7005 for evaluating this disability.  Under this Code, a 10 percent rating is warranted for arteriosclerotic heart disease (coronary artery disease) with a documented history of coronary artery disease where a workload of greater than 7 METS but not greater than 10 MET's results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.  A 30 percent evaluation is assigned for workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent evaluation is warranted where there is more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent evaluation is warranted with chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104. 

One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  38 C.F.R. § 4.104, NOTE (2).  When the level of MET's at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in MET's and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  Id.  

In this case, it does not appear that any determination regarding METs was specifically included as part of the VA medical examinations conducted in June 2009.  However, it was also found that he did not have any cardiovascular symptoms or a documented cardiovascular disorder.  Moreover, it was noted on the VA heart examination that he tolerated walking exercises well, and denied chest pain, dyspnea or other cardiac symptoms; that continuous medication was not required; and that he had never experienced syncope, fatigue, angina, dizziness, or dyspnea.  Therefore, the record does not reflect that he satisfied the criteria for a compensable rating under Diagnostic Code 7005 either.

As detailed above, specific medical testing is required to evaluate whether the Veteran has some of the requisite symptomatology to determine if he satisfies the criteria for a compensable rating under the aforementioned Diagnostic Codes.  Moreover, while he is competent to do so, he has not reported experiencing syncope, fatigue, angina, dizziness, or dyspnea.  Thus, his own contentions are not sufficient to warrant a compensable rating in this case.  Moreover, nothing in the record, to include the Veteran's own contentions, indicates he experiences symptoms due to this service-connected disability that would warrant consideration of any other Diagnostic Code.

For these reasons, the Board concludes the Veteran does not meet or nearly approximate the criteria for a compensable rating under any of the potentially applicable Diagnostic Codes.  See 38 C.F.R. § 4.31.

Analysis - Erectile Dysfunction

Pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7522, a 20 percent disability rating, the minimum compensable schedular rating is warranted for deformity of the penis with loss of erectile power. There is no other alternative criterion which warrants assignment of a compensable disability rating, and a 20 percent disability rating is the maximum schedular rating provided. 

In this case, the record reflects the Veteran's erectile dysfunction is manifested by loss of erectile power, but not by deformity of the penis.  For example, the June 2009 VA genitourinary examination noted a history of poor erection, and found that the Veteran had erectile dysfunction.  However, there was no history of trauma to the genitourinary system, no history of neoplasm, and no general systemic symptoms due to genitourinary disease.  A thorough review of the VA examination and other competent medical evidence of record does not otherwise show evidence of penis deformity in this case.  Further, in his contentions the Veteran has focused upon his loss of erectile power, but it does not appear he has identified any deformity of his penis.  Therefore, the Veteran does not meet or nearly approximate the criteria for a compensable rating under Diagnostic Code 7522.  See 38 C.F.R. § 4.31.

In regard to the acknowledged loss of erectile power, the Board notes that a footnote to Diagnostic Code 7522 indicates that review for entitlement to SMC for loss of use of creative organ under § 3.350 should be taken.  However, the Veteran is already in receipt of SMC for loss of use of creative organ.  

Nothing in the record indicates that consideration of a Diagnostic Code other than 7522 is warranted in this case.

Analysis - SMC Loss of Use of Creative Organ

The Board notes that the July 2009 rating decision also addressed the issue of entitlement to special monthly compensation (SMC) for loss of use of creative organ, and that this issue was included as part of the October 2010 Statement of the Case (SOC).  However, the July 2009 rating decision awarded SMC based on loss of use of creative organ pursuant to 38 U.S.C.A. § 1114(k).  The Veteran has not explained why he feels that a higher level of SMC is warranted.  Moreover, the provisions of 38 U.S.C.A. § 1111 do not provide a basis upon which to assign a higher level of SMC.  Accordingly, the preponderance of the evidence is against the Veteran's claim

Other Considerations

In evaluating the severity of the Veteran's service-connected diabetes mellitus type II, diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta by X-ray, and erectile dysfunction, the Board considered whether "stated" rating(s) were warranted in this case.  However, a thorough review of the record did not disclose any distinctive period(s) where any of these disabilities met or nearly approximated the criteria for rating(s) in excess of those currently in effect.  Therefore, "staged" rating(s) are not warranted in this case.

The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1)  See Thun v. Peake, 22 Vet. App. 111 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  However, there has been no showing that the service-connected diabetes mellitus, diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta, and/or erectile dysfunction have rendered impracticable the application of the regular schedular standards.  The regular schedular standards contemplate the symptomatology shown in this case as was discussed above.  In other words, the record does not reflect that any of these service-connected disabilities is manifested by symptomatology that is not reflected by the current schedular criteria.  Simply put, there is no evidence of an exceptional or unusual disability picture in this case due to any of these disabilities which renders impracticable the application of the regular schedular standards.  As such, referral for consideration for an extraschedular evaluation is not warranted here.  See 38 C.F.R. § 3.321(b)(1); Thun, supra. 


ORDER

Service connection for bad blood circulation of the arms, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for hypertension, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for a heart disorder, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for radiculopathy of the right upper extremity, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for radiculopathy of the left upper extremity, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for radiculopathy of the right lower extremity, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for radiculopathy of the left lower extremity, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for a kidney disorder, to include as secondary to the service-connected diabetes mellitus type II, is denied.

Service connection for a liver disorder, to include as secondary to the service-connected diabetes mellitus type II, is denied.

An initial rating in excess of 20 percent for diabetes mellitus, type II, is denied.

An initial rating in excess of 10 percent for diabetic neuropathy of the right upper extremity is denied.

An initial rating in excess of 10 percent for diabetic neuropathy of the left upper extremity is denied.

An initial rating in excess of 10 percent for diabetic neuropathy of the right lower extremity is denied.

An initial rating in excess of 10 percent for diabetic neuropathy of the left lower extremity is denied.

A initial compensable rating for service-connected atherosclerotic aorta by X-ray is denied.

An initial compensable rating for service-connected erectile dysfunction is denied.

A higher level of SMC for loss of use of creative organ is denied.


REMAND

In this case, the Board finds that further development is required with respect to the Veteran's claims of service connection for hypertension and an acquired psychiatric disorder to include PTSD, as well as entitlement to a TDIU.

As noted above, the July 2006 VA medical examination concluded the Veteran did not have hypertension.  Similarly, the June 2009 VA heart examination stated he did not have hypertension.  However, subsequent treatment records, to include records dated in January and June 2010, identify it as an active problem.  There are also notations indicating he taking medication for hypertension.  As such, there is evidence of a current disability regarding this claim.  See McLain, supra.  Nevertheless, it is still not clear from the evidence of record whether the Veteran's current hypertension is etiologically linked to his active service, to include whether it is secondary to his service-connected diabetes mellitus type II or other service-connected disabilities.  Therefore, a remand is required to accord the Veteran such an examination and opinion.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).  

With respect to the psychiatric disorder claim, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed, due to the purported stressors alleged by the Veteran and his other theories of entitlement.

In addition to the rules of service connection detailed above, the Board notes that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  In addition, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis.

The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror".  DSM-IV at 427-28.  These criteria are no longer based solely on usual experience and response but are individualized (geared to the specific individual's actual experience and response).  Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition.  Cohen v. Brown, 10 Vet. App. 128, 141 (1997).

In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD.

As detailed in the prior Board remand of December 2008, the Veteran contends that his experiences in Vietnam caused his current PTSD.  For example, the Veteran indicated that he was a member of Company C  577 attached to Infantry Battalion 25 in Pleicu in Vietnam, with the 46th Engineers in Long Binh, and with the 296th Infantry in Mytho.  The Veteran reported that he was sent on missions to the Mecong Delta south of Saigon.  He reported that the sergeant of the kitchen committed suicide in his presence and that he observed captives being thrown from helicopters during interrogation.  His service personnel records reveal that he was stationed with Company C of the 577th Engineer Battalion from August 1966 to January 1967 and with the 46th Engineer Battalion from January 1967 to May 1967.  Additionally, the Veteran has reported that his location was shelled every day while he was serving in Vietnam.  Moreover, the evidence of record reveals that the veteran has been diagnosed with PTSD by a private physician in July 1989, July 2003, and December 2006 based upon the Veteran statements of his experiences in Vietnam. 

In February 2009 the U.S. Army and Joint Services Records Research Center (JSRRC) noted that none of Operational Reports-Lessons Learned (OR-LLs) submitted by the 577th Engineer Battalion documented any casualties as a result of suicide as stated in the stressor of the Veteran.  Since the Veteran did not provide a name of the individual who committed suicide, they also reviewed the casualty information available for his period of assignment from August 1966 to January 1967, which did document one individual who died from hostile forces as a result of a suicide in November 1966, location unknown.

A February 2009 VA psychiatric examination found that the Veteran did meet the DSM-IV stressor criterion, but found that he did not meet the DSM-IV criteria for a diagnosis of PTSD.  The examiner diagnosed schizophrenia, chronic undifferentiated type by history.  The examiner also found that the Veteran's schizophrenia was not caused by or a result of active duty stressors, combat related.

A June 2009 VA mental disorders examination also diagnosed schizophrenia, chronic undifferentiated type by history.  Moreover, the examiner opined that the schizophrenia was not caused by or a result of the Veteran's service-connected glaucoma and/or diabetes/mellitus type II.  The Board notes, however, that in the opinion and supporting rationale, it does not appear the examiner addressed the issue of whether the psychiatric disorder was aggravated by the service-connected glaucoma and/or diabetes.  Further, as this examination was conducted before the July 2009 VA examination which established service connection, it did not take into consideration the Veteran's service-connected diabetic neuropathy of the upper and lower extremities, atherosclerotic aorta, or erectile dysfunction.

The Board also notes that there has been a significant change in the law regarding PTSD claims during the pendency of this case.  Specifically, for all claims pending before VA on or after July 13, 2010, the provisions of 38 C.F.R. § 3.304(f) were amended by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 

(f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010).  As the Veteran's claim was appealed to the Board before July 13, 2010, but had not been decided by the Board as of July 13, 2010, the amended regulations apply to the instant claim.

Inasmuch as the change in law occurred subsequent to the 2009 VA examinations in this case, as well as the April 2010 Supplemental SOC (SSOC) on the PTSD issue, the revised provisions were clearly not addressed below.  Moreover, the Veteran's account of his purported experiences while on active duty in Vietnam do appear to give rise to a claim of "fear of hostile military or terrorist activity."  

In addition, the February 2009 VA examiner indicated that the Veteran might have had a conduct disorder and antisocial personality disorder prior to active military service.  As no psychiatric disorder was found at the time of the Veteran's pre-induction examination in May 1965, this raises the issue of whether the Veteran clearly and unmistakably had a pre-existing psychiatric disorder and, if so, whether it is clear and unmistakable that it was not aggravated during service.

In view of the foregoing, the Board finds that the VA medical examinations in this case are not adequate for adjudication of the Veteran's psychiatric disorder claim.  Accordingly, a remand is required to accord him a new examination which takes into considered the revised regulatory provisions regarding PTSD claims.  See Colvin, supra; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes an examination, even if not required to do so, an adequate one must be produced). 

The Board notes that resolution of the Veteran's hypertension and psychiatric disorder claims may affect adjudication of his TDIU claim, particularly as the records from the SSA reflect that disability benefits were awarded due to an acquired psychiatric disorder.  Therefore, these claims are inextricably intertwined, and the Board will defer adjudication of the TDIU claim until after the development deemed necessary for the other claims has been completed.  

Since the Board has determined that new examinations are necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations.  The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations.  That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken.  At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

The Board further finds that any outstanding treatment records regarding the Veteran's hypertension and psychiatric disorder should be obtained while this case is on remand.  Of particular interest are any additional records from Drs. German, Chow, Bustillo and Reyes, as well as records from the Julia Clinic and Mental Health Center, and any other facilities where the Veteran was treated for the claims at issue.

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should request that the Veteran provide or identify records not already associated with the claims folder of medical care providers, both VA and non-VA, including Drs. German, Chow, Bustillo and Reyes, as well as the Julia Clinic and Mental Health Center, and any other facilities where the Veteran was treated for the claims at issue.  After securing any necessary release(s), the AMC/RO should obtain those records not on file.

If, after making reasonable efforts to obtain named non-VA records the AMC is unable to secure same,   or if after continued efforts to obtain federal records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

2.  After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and etiology of his hypertension.  The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.

a.  Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the hypertension began in, is related to, or was manifested within 1 year of discharge from service.  If the examiner determines that the disorder did manifest within 1 year of discharge, the examiner should address the severity thereof during that time period.

b.  If the examiner determines the Veteran's hypertension was not directly related to service, then an opinion must be expressed as to whether it is at least as likely as not that the hypertension was caused by the Veteran's service-connected disabilities which are diabetes mellitus, diabetic neuropathy of the upper and lower extremities, glaucoma, atherosclerotic aorta, and erectile dysfunction.  

c.  Also, is it at least as likely as not that the Veteran's hypertension was aggravated (i.e., worsened) by the Veteran's service-connected disabilities.  By aggravation, the Board means an increase in the underlying severity of the disability that is beyond natural progression.  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hypertension found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability or disabilities.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.

3.  The Veteran should also be accorded a VA medical examination to address the nature and etiology of his acquired psychiatric disorder.  The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.

a.  With respect to the personality disorder that was diagnosed by the VA examiner in February 2009, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional psychiatric disability.  Please provide a complete explanation for the opinion.  

b.  State whether it is clear and unmistakable (obvious, manifest, and undebatable) that the Veteran had a psychiatric disorder, including a conduct disorder, that pre-existed active service.  See the February 2009 VA examination report.  Please provide a complete explanation for the opinion.  

c.  If so, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing psychiatric disorder WAS NOT aggravated (i.e., permanently worsened) during service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress.  Please provide a complete explanation for the opinion.  

d.  If responses above are negative, express an opinion as to whether it is at least as likely as not that a psychiatric disorder, including diagnosed schizophrenic disorder, anxiety disorder, and PTSD, began in or are otherwise the result of the Veteran's active service.  Regarding PTSD, which has been diagnosed during the pendency of this claim, the examiner must address whether the diagnosis is related to a corroborated stressor or fear of hostile military or terrorist activity as defined by the revised regulatory provisions of 38 C.F.R. § 3.304(f).  The examiner must also address whether the Veteran had a psychosis manifested within 1 year of discharge, and, if so, the severity thereof.  Please provide a complete explanation for the opinions.  

e.  If the examiner determines any Veteran's psychiatric disorder was not directly related to service, then an opinion must be expressed as to whether it is at least as likely as not that any diagnosed psychiatric disorder, including schizophrenic disorder, anxiety disorder, and PTSD, was caused by the service-connected disabilities which are diabetes mellitus, diabetic neuropathy of the upper and lower extremities, glaucoma, atherosclerotic aorta, and erectile dysfunction.  Please provide a complete explanation for the opinion.  

f.  Also, is it at least as likely as not that any diagnosed psychiatric disorder, including diagnosed schizophrenic disorder, anxiety disorder, and PTSD, was aggravated (i.e., worsened) by the Veteran's service-connected disabilities.  By aggravation, the Board means an increase in the underlying severity of the disability that is beyond natural progression.  If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's psychiatric disorder(s) found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability or disabilities.

A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation.

4.  Thereafter, the AMC/RO should review the claims folder to ensure that the foregoing requested development has been completed.  In particular, the AMC/RO should review the examination reports to ensure that they are responsive to and in compliance with the directives of this remand and if not, the AMC/RO should implement corrective procedures.  See Stegall v. West, 11 Vet. App. 268 (1998).

5.  After completing any additional development deemed necessary, the AMC/RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.  The AMC/RO's decision should reflect consideration of revised regulatory provisions of 38 C.F.R. § 3.304(f) regarding claims of PTSD based upon fear of hostile military or terrorist activity.

If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since the RO last adjudicated these claims, and provides an opportunity to respond.  

The case should then be returned to the Board for further appellate consideration, if in order.  By this remand, the Board intimates no opinion as to any final outcome warranted.

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).


____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs