Citation Nr: 1310158	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  10-45 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to an effective date earlier than October 14, 2009, for service connection for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease, and for service connection for tinnitus and bilateral hearing loss.

2.  Entitlement to an initial disability rating higher than 20 percent for diabetes mellitus with erectile dysfunction and peripheral neuropathy.

3.  Entitlement to an initial disability rating higher than 10 percent for coronary artery disease.

4.  Entitlement to an initial disability rating higher than 10 percent for tinnitus.

5.  Entitlement to an initial compensable disability rating for bilateral hearing loss.




ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from May 1968 to October 1975.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In a February 2010 rating decision, the RO granted service connection for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease.  The RO also granted service connection for tinnitus and for bilateral hearing loss.  The RO made service connection for each of those disabilities effective October 14, 2009.  The RO assigned a 20 percent disability rating for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease, a 10 percent disability rating for tinnitus, and a 0 percent, noncompensable disability rating for bilateral hearing loss.  In a December 2011 rating decision, assigned a separate 10 percent disability rating for coronary artery disease.

The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence.

The issue of a higher rating for coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.





FINDINGS OF FACT

1.  VA received the Veteran's application for service connection for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease, and for service connection for tinnitus and bilateral hearing loss, on October 14, 2009.

2.  From October 14, 2009, the Veteran's diabetes has required a restricted diet and oral medication but has not required regulation of activities, hospitalizations, or more than monthly visits to a diabetic care provider.  His erectile dysfunction complication of diabetes has not been manifested by any deformity of the penis.  His peripheral neuropathy complication of diabetes has not produced partial loss of use of his lower extremities.

3.  From October 14, 2009, the Veteran's tinnitus has been constant and bilateral.

4.  From October 14, 2009, the Veteran's hearing impairment has been no worse than Level I impairment in one ear and Level I impairment in the other ear.


CONCLUSIONS OF LAW

1.  Service connection for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease, and for service connection for tinnitus and bilateral hearing loss, may not be effective earlier than October 14, 2009, the date of receipt of a claim for that benefit.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012).

2.  From October 14, 2009, the Veteran's diabetes mellitus with erectile dysfunction and peripheral neuropathy has not met the criteria for a disability rating higher than 20 percent.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012).

3.  From October 14, 2009, the Veteran's tinnitus has not met the criteria for a disability rating higher than 10 percent.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260 (2012).

4.  From October 14, 2009, the Veteran's bilateral hearing loss has not met the criteria for a compensable disability rating.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.85 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Effective Date Claim

The Veteran is seeking an earlier effective date for service connection for disabilities.  In October 14, 2009, the RO stamped as received the Veteran's application for service connection and disability compensation for disabilities.  The disabilities the Veteran claimed were type II diabetes mellitus, erectile dysfunction, peripheral neuropathy, hearing loss, tinnitus, and residuals of malaria.  In the February 2010 rating decision the RO granted service connection for hearing loss, tinnitus, and diabetes mellitus with erectile dysfunction, peripheral neuropathy, and coronary artery disease.  The RO made service connection effective October 14, 2009.  The Veteran appealed for an earlier effective date.

Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  If the claim is received within one year from the date of separation from service, the date of separation will be the date of the award.  38 U.S.C.A. § 5110(b)(1).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.

In his April 2010 notice of disagreement (NOD), the Veteran contended that there should be retroactive payment for his service-connected disabilities.  He indicated that before he filed his claim he went to a VA facility in Georgia and provided information from his private doctor.  He stated that VA clinicians diagnosed his disorders but did not suggest that he submit a claim for disability compensation.  He noted that his hearing loss was detected as he left the service, but that nothing was said about filing a claim for disability compensation.

In February 2002, the Veteran's private physician completed a VA diabetes herbicide presumption form.  The physician indicated the treatment that was required to manage the Veteran's diabetes, and indicated that the Veteran had peripheral neuropathy directly due to his diabetes.  A February 2002 laboratory report from the Atlanta, Georgia VA Medical Center (VAMC) indicated that the Veteran had a high blood glucose level.  In a March 2002 letter, a VA clinician at the Atlanta VAMC acknowledged the Veteran's participation in the VA Agent Orange Registry Program.  Records of VA treatment of the Veteran in 2009 and 2010 reflect that in August 2009 the Veteran had coronary artery disease, hypertension, diabetes mellitus, and hyperlipidemia.  The earliest of those records, from August 2009, indicates that the purpose of the primary care visit was a new patient physical examination.

The Veteran does not report that he filed a claim for service connection for hearing loss when he left service.  Rather, he contends that someone in service who was aware of his hearing loss should have suggested to him that he file a VA disability compensation claim.  Similarly, the Veteran does not report that he filed a formal claim for VA disability compensation when he participated in the Agent Orange registry in 2002.  He asserts that someone at VA should have suggested that he file a VA disability compensation claim.  Through that assertion, he in effect raises a question as to whether his 2002 participation in the Agent Orange registry should be considered an informal claim for benefits.  The Board notes that effective July 9, 2001, diabetes was added to list of diseases at 38 C.F.R. § 3.309(e) that are presumed service connected based on Agent Orange exposure.  See 66 Fed. Reg. 23168 (May 8, 2001).

A specific claim must be filed in order for VA benefits to be paid.  38 U.S.C.A. § 5101 (West 2002); 38 C.F.R. § 3.151 (2012).  A communication of an intent to apply for VA benefits, and identifying the benefit sought may be considered an informal claim.  38 C.F.R. § 3.155 (2012).  Upon receipt of an informal claim, VA is to provide the claimant an application form.  If the completed application form is received within one year after it was sent to the claimant, the claim will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

The Veteran contends that someone in service should have inferred the possibility of and suggested to him a VA disability compensation claim based on a finding of hearing loss, and that someone at VA should have inferred the possibility of and suggested to him a VA claim based on finding of disorders that might be service connected.  The silences of service and VA personnel regarding potential benefits claims were unfortunate, as they were missed opportunities to look out for the Veteran's interests.  Nonetheless, the opportunity for a service branch or VA employee to suggest the filing of a claim does not create an informal claim.  An informal claim requires communication of an intent to apply for benefits, and a formal claim requires filing an application form.  The Veteran did not communicate an informal claim and did not file a formal claim earlier than the application that the RO received on October 14, 2009.  Therefore, the effective date of service connection for his service-connected disabilities may not be earlier than that date.

Rating for Diabetes Mellitus with Erectile Dysfunction and Peripheral Neuropathy

The RO initially, in the February 2010 rating decision, assigned a 20 percent disability rating for a disability described as diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease.  Later, in the December 2011 rating decision, the RO assigned a separate 10 percent rating for coronary artery disease, and continued the 20 percent rating for a disability described as diabetes mellitus with erectile dysfunction and peripheral neuropathy.  The Veteran has continued his appeal of the initial rating, so the ratings on appeal include the rating for diabetes mellitus with erectile dysfunction and peripheral neuropathy and the rating for coronary artery disease.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10 (2012).  If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107.

In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records.  38 C.F.R. § 4.2.  The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Veteran appealed the initial disability rating that the RO assigned, and continued his appeal after the RO assigned a higher rating for a later period.  The Board will consider the evidence for the entire period since October 14, 2009, the effective date of the grant of service connection, and will consider whether staged ratings are warranted.

The rating schedule provides the following criteria for rating diabetes:

Requiring 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  ............................................. 100 percent

Requiring 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
   .............................................................................. 60 percent

Requiring insulin, restricted diet, and regulation of activities
   .............................................................................. 40 percent

Requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet  ......................................... 20 percent

Manageable by restricted diet only  ........................ 10 percent

Note (1): Evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation.  Noncompensable complications are considered part of the diabetic process under diagnostic code 7913.

38 C.F.R. § 4.119, Diagnostic Code 7913.

The rating schedule provides for assigning a 20 percent disability rating for deformity of the penis with loss of erective power.  38 C.F.R. § 4.115b, Diagnostic Code 7522 (2012).  VA also provides special monthly compensation for loss of use of a creative organ.  38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2012).  The RO granted the Veteran special monthly compensation for loss of use of a creative organ due to his erectile dysfunction.

On VA diabetes mellitus examination in January 2010, it was noted that the manifestations of the Veteran's diabetes included intermittent numbness in his big toes.  The RO provided for evaluating that condition by including peripheral neuropathy as a complication of the Veteran's diabetes.  The rating schedule provides for evaluating diseases of the peripheral nerves based on impairment of motor or sensory function, with consideration of complete or partial use of an extremity and disturbances of gait.  Partial loss of use of an extremity is to be rated by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves.  38 C.F.R. § 4.124a (2012).  Mild incomplete paralysis of a peripheral nerve that affects the toes is rated compensably, at 10 percent.  38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8524, 8525.

In February 2002, the Veteran's private physician, M. K., M.D., stated that the Veteran's diabetes required insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet.  Dr. K. indicated that the Veteran had peripheral neuropathy due to his diabetes.  In October 2009, Dr. K. wrote that the Veteran's diabetes required medical therapy.

On VA examination in January 2010, the Veteran reported that he was on daily oral medications for his diabetes.  He indicated that he did not have restricted activity because of diabetes.  He stated that he had no had ketoacidosis or hypoglycemic reactions and had not had hospitalization due to diabetes manifestations.  He indicated that he was on a restricted diet due to his diabetes.  He reported that he visited a diabetic care provider every six months.  The Veteran reported having had erectile dysfunction since 2008, with trouble maintaining an erection.  He indicated that vaginal penetration was possible and that treatment was effective.  The examiner found that the Veteran's genitalia were normal. The Veteran indicated that he had diabetic peripheral neuropathy in the form of intermittent numbness in his big toes, with no exacerbating or alleviating factors.  He denied having any weakness in his lower extremities.  The examiner found that the Veteran had no limitation due to his neuropathy.  On examination there was normal sensation to light touch and vibration in the soles of the feet.  The lower extremities had motor function of 5/5.  Deep tendon reflexes were 2+ and equal.

In his April 2010 NOD, the Veteran noted that he still had tingling in his feet.  He argued that this should warrant at least an additional 10 percent rating.  In statements submitted in November 2010 the Veteran wrote that his diabetes required medication and a restricted diet.  He indicated that the diabetes produced some neuropathy and adversely impacted his sex life.

From 2009 forward, the Veteran's diabetes has not required regulation of activities.  He has not had episodes of ketoacidosis or hypoglycemic reactions.  His diabetes has not required hospitalizations.  His visits to a diabetic care provider have been less frequent than twice a month.  The erectile dysfunction complication of his diabetes has not been manifested by any deformity of the penis.  Therefore it would not be compensable if it were evaluated separately.  The peripheral neuropathy complication of his diabetes, manifested by intermittent numbness in his big toes, has not produced partial loss of use of his toes.  Therefore it would not be compensable if it were evaluated separately.  The preponderance of the evidence thus is against a rating higher than the existing 20 percent rating for the Veteran's diabetes with erectile dysfunction and peripheral neuropathy.

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment.  38 C.F.R. § 3.321(b)(1).

The Veteran's diabetes with erectile dysfunction and peripheral neuropathy has not required frequent hospitalizations, and has not been reported to markedly interfere with employment.  The Board has read the Veteran's statements.  The existing 20 percent rating, however, contemplates the requirements of medication and a restricted diet.  The 20 percent rating contemplates the complications of erectile dysfunction and peripheral neuropathy, neither of which in the Veteran's case has manifestations that would be compensable if rated separately.  Therefore it is not necessary to refer the rating of the Veteran's diabetes with erectile dysfunction and peripheral neuropathy for consideration of an extraschedular rating.

Rating for Tinnitus

The Veteran has appealed the initial 10 percent rating that the RO assigned for his service-connected tinnitus.  In a January 2010 VA audiology examination, the Veteran reported having constant bilateral tinnitus that began during service.  He indicated that the tinnitus make it difficult to hear.  The examiner did not indicate that the Veteran's tinnitus was audible to other people.  The rating schedule provides for evaluating tinnitus at 10 percent, whether it is perceived in one ear or both.  38 C.F.R. § 4.87, Diagnostic Code 6260.  The rating assigned for the Veteran's tinnitus is the maximum schedular rating for tinnitus.  There is not a higher rating that can be assigned under the rating schedule, and the preponderance of the evidence is against a higher rating.  The Veteran's tinnitus has not required hospitalization and has not been reported to markedly interfere with employment.  His tinnitus is contemplated under the rating schedule, so there is not a basis to refer rating of the tinnitus for consideration of an extraschedular rating.

Rating for Hearing Loss

The Veteran has appealed the initial noncompensable disability rating the RO assigned for his bilateral hearing loss.  Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85.  The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hertz, shown on a puretone audiometry test.  38 C.F.R. § 4.85.  To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI.  See 38 C.F.R. § 4.85, Table VI.  The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss.  See 38 C.F.R. § 4.85, Table VII.  When certain exceptional patterns of hearing impairment are present, hearing may be evaluated under a separate table, Table VIa, if evaluation under that table would result in a higher hearing impairment level numeral.  See 38 C.F.R. § 4.86(a) (2012).  The Veteran's hearing impairment is not in any of the patterns described in 38 C.F.R. § 4.86, so his hearing impairment can be evaluated under 38 C.F.R. § 4.85 and Tables VI and VII.  Tables VI and VII are reproduced below.

TABLE VI
Numeric Designation of Hearing Impairment
Based on Puretone Threshold Average and Speech Discrimination

Percentage of 
Discrimination		Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV
84-90
II
II
II
III
III
III
IV
IV
IV
76-82
III
III
IV
IV
IV
V
V
V
V
68-74
IV
IV
V
V
VI
VI
VII
VII
VII
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI


Table VII
Percentage Evaluations for Hearing Impairment

LEVEL OF HEARING
IN BETTER EAR
XI 
100* 










X 
90 
80 









IX 
80 
70 
60 








VIII 
70 
60 
50 
50 







VII 
60 
60 
50 
40 
40 






VI 
50 
50 
40 
40 
30 
30 





V 
40 
40 
40 
30 
30 
20 
20 




IV 
30 
30 
30 
20 
20 
20 
10 
10 



III 
20 
20 
20 
20 
20 
10 
10 
10 
0 


II 
10 
10 
10 
10 
10 
10 
10 
0 
0 
0 

I 
10 
10 
0 
0 
0 
0 
0 
0 
0 
0 
0 
 
XI
X
IX
VIII
VII
VI
V
IV
III
II
I
					LEVEL OF HEARING IN POORER EAR

*  Entitled to special monthly compensation under 38 C.F.R. 3.350. [64 FR 25206, May 11, 1999] 

On VA audiology examination in January 2010, the Veteran reported having difficulty understanding speech.  Testing revealed puretone thresholds, in decibels, as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
5
15
50
70
LEFT
0
0
15
60
70

The puretone threshold average was 35 decibels in the right ear and 36 decibels in the left ear.  Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear.  The hearing impairment levels were I in the right ear and I in the left ear.  The test results were consistent with a 0 percent rating.  The VA examination was conducted in accordance with 38 C.F.R. § 4.85(a), and the examiner noted the Veteran's perception of impairment of hearing.  The Board finds that the VA examination was adequate for rating purposes and is entitled to great probative value.  See Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007).

In his April 2010 NOD, the Veteran noted that his hearing impairment is bad enough that VA suggested getting a hearing aid.

There is no objective evidence that the Veteran's hearing impairment meets the criteria for a higher, compensable rating.  The Veteran's hearing impairment has not required hospitalizations, and there has been no indication that it markedly interferes with employment.  The rating schedule contemplates the Veteran's hearing impairment, including his difficulty understanding speech.  Therefore it is not necessary to refer the rating for hearing loss for consideration of an extraschedular rating.

With respect to the Veteran's claims for increased ratings diabetes with erectile dysfunction and peripheral neuropathy and for tinnitus and hearing loss, the Board has considered whether the Veteran is raising or whether the record raises the issue of unemployability under Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran has not indicated and the assembled evidence does not indicate that the Veteran is unemployed.  The record therefore does not raise the issue of unemployability as a result of service-connected disabilities.

Regarding all of the increased rating claims, the Board has also considered whether a referral for extraschedular rating is warranted.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required.  See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extraschedular consideration referral).  

The Veteran has complaints, but they are consistent with the ratings criteria.  The ratings criteria encompass these complaints.  In this regard, it is important for the Veteran to understand that without taking into consideration these problems there would be little basis for the current findings, let alone higher evaluations. 

There is no indication that he has symptoms or impairment outside the scope of the ratings criteria at any time during the period on appeal.  The Veteran merely disagrees with the assigned evaluation for his level of impairment.  In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria.  The available schedular evaluations for that service-connected disability are adequate.  Referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.  Further inquiry into extraschedular consideration is moot.  See Thun, supra.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b).  The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

The RO provided the Veteran with VCAA notice in an October 2009 letter, issued before the rating decisions that the Veteran has appealed.  That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates.  The letter also addressed who was to provide the evidence.  

The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, and reports of VA medical examinations.  The Veteran has had VA medical examinations that are adequate for evaluating his diabetes mellitus, erectile dysfunction, peripheral neuropathy, tinnitus, and hearing loss.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claims that the Board is deciding at this time, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence.  The Veteran has actively participated in the claims process by providing evidence and argument.  Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.  Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests.  See Pelegrini, 18 Vet. App. at 121.  Therefore, any such error is harmless, and does not prohibit consideration of those claim on the merits.  See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).


ORDER

Entitlement to an effective date than October 14, 2009, for service connection for diabetes mellitus with erectile dysfunction, peripheral neuropathy and coronary artery disease, and for service connection for tinnitus and bilateral hearing loss, is denied.

From October 14, 2009, entitlement to a disability rating higher than 20 percent for diabetes mellitus with erective dysfunction and peripheral neuropathy is denied.

From October 14, 2009, entitlement to a disability rating higher than 10 percent for tinnitus is denied.

From October 14, 2009, entitlement to a disability rating higher than 10 percent for bilateral hearing loss is denied.


REMAND

The Veteran has coronary artery disease.  Medical records reflect that he had coronary artery disease and underwent angioplasty prior to 2008.  In July 2008 he had an acute myocardial infarction and he underwent emergency angioplasty.  He has appealed the initial 10 percent rating the RO assigned for his coronary artery disease status post angioplasty.

The rating schedule provides for evaluating coronary artery disease based in significant part on test results or medical estimates of the level of activity that results in dyspnea, fatigue, angina, dizziness, or syncope.  See 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012).  In October 2009, private treatment records reflected that the Veteran walked or jogged for exercise without experiencing angina or syncope.  The Veteran underwent VA pulmonary function tests (PFTs) in 2009 and 2010.  Those tests showed obstructive and sometimes restrictive patterns.  On some occasions the tests showed mild or moderate impairment.  On one occasion the Veteran became very short of breath while performing the test.

In statements submitted in 2010, the Veteran reported that his heart disease required him to be on medications that had side effects of fatigue and respiratory difficulties, which in turn restricted his physical activities.  

On a VA heart examination in April 2011, on testing the Veteran reached a high level of activity and did not experience dyspnea, fatigue, angina, dizziness, or syncope.  The examination report did not address the PFTs or the Veteran's claim that heart disease or medications for it created respiratory difficulties.  As dyspnea with activity is a factor in evaluating coronary artery disease, the evidence regarding respiratory difficulties may be relevant to the rating for coronary artery disease.  The Board will remand the coronary artery disease rating issue for a new VA examination with review of the claims file and opinion regarding the relationship, if any, between the coronary artery disease and any respiratory difficulties.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  The RO should provide the examiner who will review the file in conjunction with this remand all evidence that is in the Virtual VA electronic claims file and not in the paper claims file and that is relevant to the remanded claim.

Accordingly, the case is REMANDED for the following action:

1.  In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims.  The AMC or RO is to review the electronic file.  With all documents contained therein deemed to be relevant to the remanded claim and not duplicative of the documents already found in the paper claims file, take action to ensure that the records in the electronic file are made available (whether by electronic means or by printing) to the clinician who is asked to review the claims file and provide medical findings in conjunction with the development requested herein.

2.  Schedule the Veteran for a VA medical examination to address the rating for coronary artery disease status post angioplasty.  Provide the examiner with the Veteran's claims file for review.  Ask the examiner to review the claims file, examine the Veteran, and order any testing the examiner deems necessary.  Ask the examiner to provide an opinion as to the relationship, if any, between the Veteran's coronary artery disease and the respiratory difficulties reported by the Veteran and indicated on pulmonary function tests.  Ask the examiner to provide a clear and thorough explanation of the opinion provided.

3.  Thereafter review the expanded record and reconsider the coronary artery disease rating claim.  If that claim remains less than fully granted, issue a supplemental statement of the case and afford the Veteran an opportunity to respond.  Thereafter, return the case to the Board for appellate review if otherwise in order.

The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded.  The Veteran has the right to submit additional evidence and argument on that matter.  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).


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).



Department of Veterans Affairs