Citation Nr: 1312875	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  08-33 418	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus, and if so, whether service connection is warranted for such disability.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hypercholesterolemia. 

3.  Entitlement to service connection for a bilateral eye disability, to include as secondary to service-connected type II diabetes mellitus. 

4.  Entitlement to service connection for nausea, loss of appetite, and abdominal pain, to include as secondary to anthrax vaccination.

5.  Entitlement to service connection for recurring headaches, to include as secondary to anthrax vaccination.  

6.  Entitlement to service connection for a skin disability, to include as secondary to anthrax vaccination.

7.  Entitlement to service connection for hearing loss, to include as secondary to anthrax vaccination.  

8.  Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus.  

9.  Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of implantation of penile prostheses.

10.  Entitlement to compensation under 38 U.S.C.A. § 1151 for an acquired psychiatric disability as a result of penile prostheses implantation operations.  

11.  Entitlement to a disability evaluation in excess of 20 percent for type II diabetes mellitus with microalbuminuria.  

12.  Entitlement to a disability evaluation in excess of 10 percent for left lower extremity peripheral neuropathy.  

13.  Entitlement to a disability evaluation in excess of 10 percent for right lower extremity peripheral neuropathy.  

14.  Entitlement to an initial disability evaluation in excess of 10 percent for left upper extremity peripheral neuropathy.

15.  Entitlement to an initial disability rating in excess of 10 percent for right upper extremity peripheral neuropathy.  

16.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1974 to October 1977 and from February 2003 to November 2003, with addition service with the National Guard.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2007, March 2008, and March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico.  

In January 2013, the Veteran appeared and provided testimony at a Videoconference Hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the Veteran's "Virtual VA" file.  

One of the matters the Board must address is which issue or issues are properly before it at this time.  Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran.  

In essence, the following sequence is required: There must be a decision by the RO, the Veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the Veteran, and finally the Veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203 (2012).  In this regard, the Board notes that the Veteran presented issues at his January 2013 Board hearing on issues that were not properly on appeal.  Accordingly, the Board has limited its consideration to the issues properly on appeal.

Additionally, at his January 2013 Board hearing, the Veteran indicated his intent to withdraw several issues that were on appeal.  The Veteran expressly stated that he no longer wished to pursue the issues of entitlement to service connection for hair loss, entitlement to service connection for a prostate disability, entitlement to service connection for insomnia, entitlement to service connection for loss of concentration, entitlement to service connection for memory loss, and entitlement to service connection for loss of balance and loss of energy.  Therefore, the Board deems these issues to be withdrawn and has limited is consideration accordingly.  

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

The issues of entitlement service connection for tinnitus and whether new and material evidence has been received to reopen a claim for depressive disorder (beyond entitlement to compensation under 38 U.S.C.A. § 1151 for an acquired psychiatric disability as a result of penile prostheses implantation operations) has been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  

The entitlement to service connection for hypertension, entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  In a March 2006 rating decision the Veteran was denied entitlement to service connection for hypertension.  

2.  Evidence received since the March 2006 rating decision, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and therefore raises a reasonable possibility of substantiating the claim for service connection for hypertension.  

3.  In a March 2006 rating decision the Veteran was denied entitlement to service connection for hypercholesterolemia.  

4.  Evidence received since the March 2006 rating decision is not new and material and the Veteran's claim of entitlement to service connection for hypercholesterolemia cannot be reopened.  

5.  The competent evidence of record does not show that the Veteran has a bilateral eye disability related to his active service, to include as secondary to his service-connected type II diabetes mellitus.  

6.  The Veteran does not have a diagnosis of a disability manifested by nausea, loss of appetite, and abdominal pain.

7.  The Veteran does not have a diagnosis of a headache disability.  

8.  The Veteran does not have a diagnosis of a hearing loss disability for VA purposes.

9.  The Veteran's skin disability is not causally related to service, to include anthrax vaccinations received therein.  

10.  A malfunctioning penile prosthesis did not result from an event not reasonably foreseeable or from any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA.  

11.  The Veteran does not have an additional psychiatric disability as a result of his May 2008 or March 2009 penile prostheses implantation procedures. 

12.  Treatment of the Veteran's diabetes mellitus with microalbuminuria does not require regulation of activities.  

13.  The Veteran's peripheral neuropathy of the left lower extremity has not been productive of more than mild incomplete paralysis of the affected nerve.  

14.  The Veteran's peripheral neuropathy of the right lower extremity has not been productive of more than mild incomplete paralysis of the affected nerve.  

15.  The Veteran's peripheral neuropathy of the left upper extremity has not been productive of more than mild incomplete paralysis of the affected nerve.  

16.  The Veteran's peripheral neuropathy of the right upper extremity has not been productive of more than mild incomplete paralysis of the affected nerve.  


CONCLUSIONS OF LAW

1.  The March 2006 rating decision that denied entitlement to service connection for hypertension and hypercholesterolemia is final.  38 U.S.C.A. § 7105(c) (West 2002).  38 C.F.R. § 3.156(b) (2012)

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).

3.  New and material evidence has not been received since the March 2006 rating decision, and the Veteran's claim of entitlement to service connection for hypercholesterolemia cannot be reopened.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2010); 38 C.F.R. § 3.156 (2012).

4.  The criteria for service connection for a bilateral eye disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

5.  The criteria for service connection for nausea, loss of appetite, and abdominal pain have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

6.  The criteria for service connection for recurring headaches have not been met.  38 U.S.C.A.  §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

7.  The criteria for service connection for hearing loss have not been met.  38 U.S.C.A.  §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).

8.  The criteria for service connection for a skin disability have not been met. 38 U.S.C.A.  §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012).
9.  The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of implantation of penile prostheses have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012).
10.  The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for an acquired psychiatric disability as a result of penile operation have not been met.  38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012).

11.  The criteria for a disability rating in excess of 20 percent for diabetes mellitus with microalbuminuria have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.119, Diagnostic Code (DC) 7913 (2012).

12.  The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012).

13.  The criteria for a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012).

14.  The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8516, 8616 (2012).

15.  The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity are not met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Codes 8516, 8616 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Legal Criteria

The Board has reviewed all of the evidence in the claims folders.  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 of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims.

Claims to Reopen

Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as evidence not previously submitted to agency decision-makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010). 

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Service Connection

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury.  Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). 

In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310.  In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other.  Buckley v. West, 12 Vet. App. 76, 84 (1998).  

Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability.  See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 

Entitlement to Compensation under 38 U.S.C.A. § 1151

Under 38 U.S.C.A. § 1151, compensation benefits are available in certain instances for disability which is the result of VA treatment, as follows:

Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected.  For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was:

(A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or

(B) an event not reasonably foreseeable.

To determine whether a veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part involved or system separately.  38 C.F.R. § 3.361(b).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death.  Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish causation.  38 C.F.R. § 3.361(c)(1).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, the Veteran must show that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1)(ii).  Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b).  Id.

Disability Ratings Generally

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 

Diabetes Mellitus Disability Ratings

Under 38 C.F.R. § 4.119, Diagnostic Code 7913, a 20 percent rating for diabetes mellitus requires insulin or an oral hypoglycemic agent and a restricted diet.  A 40 percent rating requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities).  A 60 percent rating requires insulin, a restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring 1 or 2 hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  38 C.F.R. § 4.119, Diagnostic Code 7913. 

Lower Extremity Peripheral Neuropathy Disability Ratings

Lower extremity peripheral neuropathy is rated under 38 U.S.C.A. § 4 .124a, Diagnostic Code 8520, used for evaluating complete and incomplete paralysis of the sciatic nerve.  Under this code, a 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve.  A 20 percent disability rating is warranted for moderate incomplete paralysis of the sciatic nerve.  A 40 percent disability rating is warranted for moderately-severe incomplete paralysis of the sciatic nerve. A 60 percent disability rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  A maximum 80 percent disability rating is warranted for complete paralysis of the sciatic nerve productive of foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost.

Upper Extremity Peripheral Neuropathy Disability Ratings

The Veteran's right and left upper extremity peripheral neuropathy has been rated under 38 C.F.R. § 4.124a, Diagnostic Code 8616 for neuritis, which uses the criteria outlined under Diagnostic Code 8516 for rating of paralysis of the ulnar nerve in order to assign the appropriate disability evaluation.  Under Diagnostic Code 8516, disability ratings of 10 percent, 30 percent and 40 percent are assignable for incomplete paralysis of the ulnar nerve of the major upper extremity, which is mild, moderate, or severe in degree, respectively. 38 C.F.R. § 4.124a , Diagnostic Code 8516.  A 60 percent disability rating is assigned for a "griffin claw" deformity due to flexor contraction of the right and little fingers, very marked atrophy in the dorsal interspaces and the thenar and hypothenar eminences, loss of extension of the right and little fingers, an inability to spread (or reverse) the fingers, an inability to adduct the thumb, and weakness of the flexion of the wrist.  Diagnostic Code 8616 refers to neuritis of the ulnar nerve, and Diagnostic Code 8716 refers to neuralgia of the ulnar nerve.  Those disabilities are rated using the same criteria.

II. Analysis

Claim to Reopen a Claim for Entitlement to Service Connection for Hypertension

The Veteran's original claim of service connection for hypertension was denied in a March 2006 rating decision, essentially on the basis that there was no evidence that the Veteran's hypertension was causally related to his active service, nor was there evidence that the Veteran's hypertension manifest to a compensable degree within one year of separation from active service.  The Veteran filed a new claim for hypertension in October 2007.  In March 2008, after de novo review of the Veteran's claim, the RO confirmed and continued the March 2006 denial of service connection, finding that his hypertension was not related to his active service, nor was it related to his service connected type II diabetes mellitus.  The Veteran has appealed.  

The evidence of record at the time of the March 2006 rating decision included the Veteran's service treatment records (STRs) which were silent for complaints or findings related to hypertension.  Also of record at the time of the March 2006 rating decision were VA treatment records from the San Juan VA Medical Center (VAMC) which did not show that the Veteran's hypertension became manifest to a compensable degree within one year of his separation from active service.  The VA treatment records also did not contain evidence indicating that the Veteran's hypertension was related to his active military service.  

Pertinent evidence received since the March 2006 rating decision includes the Veteran's assertions that his hypertension is related to his service-connected diabetes mellitus.  These assertions present a new theory of entitlement that was not adjudicated by the March 2006 rating decision, and as there is a known correlation between type II diabetes mellitus and hypertension, the Board finds that there is new evidence that relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension, and raises a reasonable possibility of substantiating the claim.  

Consequently, particularly in light of the "low threshold" standard outlined in Shade, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received, and that the claim of service connection for hypertension must be reopened.  De novo consideration of the matter is addressed in the remand portion of this decision.  

Claim to Reopen a Claim for Entitlement to Service Connection for Hypercholesterolemia

The Veteran's original claim of entitlement to service connection for hypercholesterolemia was denied in a March 2006 rating decision, essentially on the basis that hypercholesterolemia is considered a laboratory finding for which compensation cannot be granted.  The Veteran filed a new claim for service connection for hypercholesterolemia in October 2007.  In a March 2008 rating decision the RO confirmed and continued the March 2006 denial of service connection, finding that hypercholesterolemia was not a disability for which service connection could be granted.  The Veteran appealed.  

The evidence of record at the time of the March 2006 rating decision included VA treatment records which showed elevated cholesterol levels since November 2000.  Also of record were the Veteran's STRs from his active service period from February 2003 to November 2003 which were silent as to any disability or diagnosis related to elevated cholesterol levels.  

Evidence received subsequent to the March 2006 denial include VA treatment records that show the Veteran receives regular treatment for a variety of disabilities and medical conditions.  There is no evidence of any disability or diagnosis that is related to elevated cholesterol levels.  

The Board is unable to view any of the newly received evidence as new and material.  The newly received medical records simply document that the Veteran has continued to seek medical care for a variety of medical conditions and do not include any competent suggestion that he has a disability or diagnosis related to the laboratory finding of hypercholesterolemia (elevated cholesterol); or that any such finding is related to his active service.  As such, and even considering the holding in Shade v. Shinseki, 24 Vet. App. 110 (2010) to the effect that the VA regulation as to reopening a claim "must be read as creating a low threshold," the claim is not reopened.  38 C.F.R. § 3.156(a).

Overall, the Board finds that the new evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for hypercholesterolemia.  The new evidence does not materially show that the Veteran's hypercholesterolemia is caused by a disability or diagnosis.  For these reasons, the Board concludes that the Veteran has not presented new and material evidence to reopen his claim.  Accordingly, the appeal is denied.  See 38 U.S.C.A. § 5108.

Service Connection for a Bilateral Eye Disability

The Veteran contends that he is entitled to service connection for a bilateral eye disability, to include as secondary to his service-connected type II diabetes mellitus.  The Board notes that throughout the pendency of his appeal the Veteran has claimed service connection for diabetic retinopathy, refractive error/loss of vision, and glaucoma secondary to type II diabetes mellitus.   

A review of the Veteran's STRs is silent for any complaints or diagnosis related to any eye disability.  

VA treatment records show that the Veteran was diagnosed with type II diabetes mellitus in April 2004, and that he has been receiving regular treatment since that time.  

Private treatment records show that the Veteran was given a diagnosis of glaucoma, bilaterally, in October 2011. 

The Veteran was afforded a VA examination in February 2008.  At that time he complained of loss of vision and droopy eyelids and he denied any ocular pain.  After physical examination the examiner diagnosed refractive error (myopia, astigmatism, presbyopia), dermatochalasis, bilateral incipient senile cataracts, and left eye retinal degenerative drusen.  The examiner specifically noted that no diabetic retinopathy was observed.  The examiner opined that the Veteran's loss of vision was caused by his refractive error, and that the loss of vision, the incipient senile cataracts, and the retinal degenerative drusen was not caused by or a result of his type II diabetes mellitus.  

The Veteran was afforded another VA examination in July 2012.  At that time, the Veteran denied any history of ocular surgery or trauma.  He denied any known family history of glaucoma.  After physical examination, the examiner diagnosed incipient senile cataracts, macular pigment changes, pinguecula, and dry eye.  The examiner also noted that the Veteran was an open angle glaucoma suspect, but did not make a diagnosis of glaucoma at the time of the examination.  The examiner opined that the Veteran's loss of vision was caused by refractive error, incipient senile cataracts, pinguecula, and dry eye.  The examiner stated that the Veteran was presently an open angle glaucoma suspect, but did not yet meet the criteria for a diagnosis.  The examiner noted that the Veteran had been diagnosed with glaucoma by his private physician in February 2008; however, she explained that the test used to make the February 2008 glaucoma diagnosis was not the appropriate test to diagnose glaucoma, and the diagnosis was therefore inaccurate.  

The July 2012 examiner opined that even though the Veteran did not have a diagnosis of open angle glaucoma, had such a diagnosis been made, it was less likely than not that it would be related to his type II diabetes mellitus.  The examiner explained that the association between open angle glaucoma and type II diabetes mellitus is controversial.  The examiner went on to explain that there may be an increased risk in diabetes patients to develop open angle glaucoma, but that the Veteran had several other risk factors that made it less likely than not that any open angle glaucoma diagnosis would be caused by his type II diabetes mellitus.  The risk factors noted by the examiner included findings that included an asymmetric cup to disc ratio and thin corneas, as well as the fact that the Veteran was Hispanic.  The examiner also found it significant that the Veteran had no other evidence of diabetic eye disease, like diabetic retinopathy.  

At the outset, the Board notes that for purposes of entitlement to benefits, the law provides that refractive errors of the eyes (myopia, presbyopia, and astigmatism) are congenital or developmental defects and are not a disease or injury within the meaning of applicable legislation pertaining to disability compensation for VA purposes, and provide no basis for service connection.  Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); 38 C.F.R. §§ 3.303(c), 4.9.  See also Beno v. Principi, 3 Vet. App. 439, 441 (1992); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Carpenter v. Brown, 8 Vet. App. 240, 243 (1995).  Additionally, in a single-judge Memorandum Decision issued by the Court, it was observed that "refractive errors" are "expressly excluded from compensation under the VA benefits scheme".  Johnson v. Shinseki, No. 08-3328, slip. op. at 5 (Vet. App. June 10, 2010).  While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain.  See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992).  

The Veteran's loss of vision, of which he has complained of since filing a claim for such in 2007, has been attributed to his refractive error and his age related senile cataracts by the February 2008 and July 2012 VA examiners.  Both examiners indicated that he had bilateral senile cataracts and both examiners stated that his bilateral loss of vision was due to his refractive errors.  It is true that the prohibition of service for refractive error of the eyes does not bar service connection for a superimposed disease or injury which created additional disability.  See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711  ) (Oct. 30, 1990).  However, no superimposed disability has been identified.  Because there is no evidence that the Veteran's refractive error is subject to a superimposed disease or injury in service which has created additional disability, and refractive error is not a disability for VA purposes, service connection for refractive error, loss of vision, to include as secondary to diabetes mellitus, type II, is not warranted.

Furthermore, under 38 U.S.C.A. § 1110, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  In this case, neither the February 2008, nor the July 2012 VA examiner found evidence warranting a diagnosis of diabetic retinopathy.  Additionally, although the Veteran had been diagnosed with glaucoma by his private physician, the July 2012 VA examiner explained that such a diagnosis was not warranted and the Veteran was only an open angle glaucoma suspect.  Accordingly, service connection for diabetic retinopathy and glaucoma is denied.  

Additionally, the Board acknowledges that at his most recent VA examination in July 2012 the Veteran was diagnosed with pinguecula.  However, there is no indication in the July 2012 VA examination report, the Veteran's STRs, or the VA or private treatment notes of record, that such diagnosis is etiologically related to his active service, or his service-connected type II diabetes mellitus.  Therefore, service connection for such is not warranted.  

In sum, the Board finds that there is no evidence to suggest that the Veteran has an eye disability related to his active service, to include his service-connected type II diabetes mellitus.  Accordingly, service connection for an eye disability is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Service Connection for Nausea, Loss of Appetite, and Abdominal Pain; Recurring Headaches; and Hearing Loss

The Veteran contends that he is entitled to service connection for disabilities manifested by symptoms of nausea, loss of appetite, and abdominal pain; recurring headaches; and hearing loss.  He claims that they symptoms are related to his active service, to include anthrax vaccinations received therein.  

A review of the Veteran's STRs is silent for any complaints or treatment for any symptoms related to nausea, loss of appetite, abdominal pain, or hearing loss.  A July 2003 post-deployment questionnaire shows that the Veteran reported that during his deployment to Kuwait, he experienced headaches; however he denied experiencing them on return from deployment.  On the post-deployment questionnaire, the Veteran specifically denied any current symptoms of diarrhea or vomiting.  

Of record are extensive VA treatment records that show the Veteran receives treatment for a variety of medical conditions.  There is no indication from these records that the Veteran has a diagnosis of any disability manifested by symptoms of nausea, loss of appetite, and abdominal pain; or recurring headaches; nor is there evidence that he seeks regular treatment for such symptoms.  Furthermore, these records do not show that the Veteran complains of or has been diagnosed with hearing loss.  

Under 38 U.S.C.A. § 1110, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  

As the Veteran has not been diagnosed with a disability manifested by nausea, loss of appetite, and abdominal pain or recurring headaches, and he has not been diagnosed with hearing loss; service connection for such disabilities is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Service Connection for a Skin Disability

The Veteran contends that he is entitled to service connection for a skin disability, as such was caused by his active service, to include anthrax vaccinations received therein.  

A review of the Veteran's STRs is silent for any complaints or diagnosis related to a skin disability.  On his July 2003 post-deployment questionnaire, the Veteran reported that he had received the anthrax vaccination.  He also specifically denied having had any symptoms of skin diseases or rashes during or following his deployment to Kuwait.  

Also of record are extensive VA treatment records that show the Veteran receives regular treatment for a variety of medical conditions.  A June 2008 treatment record shows that the Veteran complained fo skin lesions, pustula, and redness that had been ongoing for one week.  He was given a diagnosis of a skin infection and proscribed antibiotics.  The Veteran was advised that if the condition worsened, he was to return for follow-up treatment.  There is no indication that he sought follow-up treatment.  A VA treatment record from April 2010 shows that the Veteran complained of a rash on his cheeks and was given a diagnosis of rosacea and prescribed a topical treatment.  Subsequent VA treatment records indicate the Veteran's rosacea is controlled.  There is no indication from the VA treatment records that the Veteran's rosacea is related to his active service, to include the anthrax vaccinations received therein.  

To the extent the Veteran has attempted to claim that his current skin disability had its onset in service and it has continued since, the Board finds that the preponderance of the evidence is against the Veteran's claims.  Not only is there no evidence that the Veteran was treated for any skin problems while on active service, but the Veteran has specifically denied experiencing any skin problems while he was on his second period of active service in 2003.  

Furthermore, there are only two documented instances of the Veteran seeking treatment for skin problems following his separation from active service, neither of which were noted to be related to his active service.  Further, he was not diagnosed with a skin disability until 2010, many years after separation.  

The Board notes that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.  Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995).  Here the Veteran initially claimed entitlement to service connection for itchy skin in October 2007, claiming that such was caused by anthrax vaccinations received while on active service.  He later claimed entitlement to service connection for rosacea and skin cancer, for which he had never been diagnosed, in December 2008.  However, in his STRs, he specifically denied experiencing any skin problems while on active service, and his VA treatment records do not show any treatment for skin problems until June 2008 when he was treated for a skin infection, which appears to have been acute and transitory.  The inconsistencies in the Veteran's statements undermine his credibility.  Thus, while the Board has considered the Veteran's lay testimony and recognizes that he is competent to testify concerning observable symptoms such as itchy skin, the Board finds the Veteran's statements to be of limited probative value for the reasons discussed above.  

Based on the above evidence, the Board concludes that the contemporaneous medical evidence, which shows that the Veteran was not diagnosed with a skin disability until 2010, many years after service, is significantly more probative than the lay testimony of the Veteran concerning the onset of his disability.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran).  Therefore, the Board finds that entitlement to service connection for a skin disability cannot be granted.

The Board has also considered the Veteran's theory that his skin disability developed as a result of anthrax vaccinations received while on active service.  Unfortunately, there is no evidence of record to support the Veteran's theory.  None of his treatment providers have ever offered even a speculative opinion concerning the etiology of his disability.  The only evidence in support of the Veteran's theory of entitlement is his own unsubstantiated lay testimony.

Essentially, the Veteran has offered his opinion as to the etiology of his skin disability; however, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions.  In other words, he is a layman, not a medical expert.  The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology).  Evidence, however, must be competent evidence in order to be weighed by the Board.  Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case.

In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding.  Id.  In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable.  The Board finds that the question of whether the Veteran currently has a skin disability due to his alleged anthrax vaccinations in service is too complex to be addressed by a layperson.  This connection or etiology is not amenable to observation alone.  Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals.  Hence, the Veteran's opinion of the etiology of his current disability, however sincere, is not competent evidence and is entitled to low probative weight.

As there is no evidence that the Veteran's current skin disability (rosacea) had its onset in service or for many years after service or that they were caused by or related to the Veteran's active military service, entitlement to service connection for a skin disability must be denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

Entitlement to Compensation under 38 U.S.C.A. § 1151 for Residuals of Implantation of Penile Prostheses

The Veteran has asserted that he is entitled to compensation under 38 U.S.C.A. § 1151 for the residuals of two failed penile prostheses implantation operations.  Specifically, at his January 2013 Board hearing, he stated that he was told that his penis had atrophied, it no longer functioned, and he stated that he had not been able to be intimate for five years.  

A review of the record shows that in May 2008 the Veteran elected to have a penile prosthesis implanted, as well as to be circumcised.  In the operation report, it was noted that the Veteran had a past history of Peyronie's disease, and the Veteran has reported that this procedure was performed in order to cure his erectile dysfunction.  Prior to the May 2008, operation the Veteran signed an informed consent.  This document clearly outlined the potential benefits of the elective procedure, as well as the possible known risks and negative side effects.  The known risks of the penile prosthesis outlined on page 5 of the informed consent included, but were not limited to; "malfunction or breakdown of prosthesis requiring surgical repairs" and "patient or partner dissatisfaction with prosthesis performance."  Following the procedure the Veteran developed hypotension and leukocytosis with anemia.  He was treated with antibiotics and a full work up was performed.  After treatment, the Veteran improved and was discharged in stable condition.  

In December 2008, the Veteran was seen for complaints of persistent Peyronie's symptoms despite the May 2008 penile implant.  In March 2009, a revision of the penile implant was scheduled and the Veteran was made aware of the risks of the revision procedure which included: penile shortening, persistent curvature, loss of current implant, and infection.  The Veteran agreed to the procedure.  The Veteran also signed an informed consent which outlined the known risks of the procedure, which included, but were not limited to: "no guarantee of elimination of bending;" "dissatisfaction with appearance or functional result;" "recurrence of bending at a later time;" "impotence or difficulty maintaining erections afterwards, possibly permanent;" "malfunction or erosion of prosthesis requiring total operative repairs;" "patient or partner dissatisfaction with prosthesis performance." 

The operation report from March 2009 shows that the Veteran received an inflatable penile prosthesis replacement/nesbit procedure.  No complications were indicated.  Records from May 2009 show that the Veteran recovered well from his March 2009 procedure.  It was noted that the penile implant was able to inflate and deflate with no problems.  There was some residual left lateral penile deviation noted.  

A September 2009 VA treatment record shows that the Veteran was seen for a sexuality and health clinic consultation where he complained that his penile prosthesis had worked a few times, but no longer worked.  He was advised to seek treatment with his urologist in order to address the issue.  

A June 2011 VA treatment record shows that the Veteran complained of mild urine dribbling that began following his second penile prosthesis surgery.  He reported that he was still suffering from erectile dysfunction and that the pump for his penile prosthesis would deflate in the middle of intercourse.  He requested a consultation with urology.  

A September 2011 VA treatment record shows that the Veteran was evaluated by the urology department.  At that time the Veteran complained of spontaneous deactivation and loss of erection during intercourse.  The physician diagnosed a malfunctioning penile prosthesis.  The Veteran was advised that it was possible that a third procedure could be done to conduct another revision of the penile prosthesis to remove the old prosthesis and replace it with a new implantation.  

A February 2012 VA treatment record shows that the Veteran elected to not undergo the penile prosthesis replacement.  

As noted above, the Veteran now claims that the residuals of the penile prosthesis implantation procedure entitle him to compensation under 38 U.S.C.A. § 1151.  The urology consultation conducted in September 2011 revealed that the penile prosthesis was malfunctioning and was responsible for the Veteran's reported symptoms of urine dribbling, continued erectile dysfunction, and spontaneous deflation of the prosthesis during intercourse.  The physician advised the Veteran that the malfunctioning prosthesis could be removed and a new prosthesis could be implanted, but the Veteran decided to not undergo such procedure.  

Prior to both the May 2008 and March 2009 penile prostheses implantations, the Veteran signed informed consent documentation that clearly outlined the known risks of the procedures.  The risks outlined in the informed consent included "malfunction or breakdown of prosthesis requiring operative repairs" and "injury to bladder, urethra (channel that carries urine from the body), or corpora cavernosa (the cambers in the penis that fill with blood during erection), known or unknown at time of surgery."  Additionally, risks of the nesbit procedure performed in conjunction with the March 2009 penile prostheses revision, outlined in the informed consent, included "impotence or difficulty maintaining erections afterwards, possibly permanent."  This list of all possible known risks was detailed and the Veteran was made aware of possible alternatives to the procedures.  

However, regardless of the risks to the procedures, the Veteran chose to have both the May 2008 and March 2009 elective penile prostheses implantation procedures and he signed the informed consents for both of those procedures, indicating that he was fully aware of all possible known risks, including those noted above.  

In sum, the symptoms that the Veteran has reported as residuals of his penile prostheses operations are all included as known risks on the signed informed consents and the medical records and reports from the May 2008 and March 2009 operations clearly indicate that there were no complications.  Therefore, the Board finds that there is no competent evidence of record suggesting that the Veteran's current symptoms, urine dribbling, erectile dysfunction, and spontaneous deflation of penile prosthesis, are the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or were not reasonably foreseeable.  Accordingly, entitlement to compensation under 38 U.S.C.A. § 1151 is not warranted.  

Entitlement to Compensation under 38 U.S.C.A. § 1151 for an Acquired Psychiatric Disability

The Veteran asserts that as a result of his "failed" penile prosthesis implantation operations he suffered from a nervous breakdown and as such is entitled to compensation under 38 U.S.C.A. § 1151.  As noted above, the Board has already determined that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA.

A review of the record shows that the Veteran has been receiving treatment for a variously diagnosed psychiatric disability since as early as November 2004.  During his years of treatment, the Veteran consistently reported symptoms of depression and frustration caused by impotence.  Specifically, a January 2006 private treatment record from a Dr. V.P, shows that the Veteran attended a treatment session with his spouse and he stated felt anxious, was drinking more alcohol, and that he felt frustrated about his impotence.  The Board notes that this treatment clearly predated the Veteran's May 2008 and March 2009 operations.  

Following his May 2008 and March 2009 penile prostheses implantation procedures the Veteran continued to receive psychiatric treatment at the VA Medical Center.  A November 2009 VA treatment record shows that the Veteran reported that he was dissatisfied with the operations and was frustrated with the results.  The VA treatment records also show that the Veteran and his spouse sought counseling together at the sexuality and health clinic in an effort to find ways to deal with his ongoing erectile dysfunction.  

Based on the medical evidence of record, the Board finds that the Veteran did not develop an additional psychiatric disability as a result of his May 2008 or March 2009 penile prostheses implantation operations.  The medical evidence shows that the Veteran has suffered from an acquired psychiatric disability since as early as November 2004, many years before his first operation.  Additionally, the Veteran has had symptoms of depression and frustration associated specifically with his impotence and erectile dysfunction that predated his first surgery in May 2008.  As such, the Veteran's acquired psychiatric disability began prior to his May 2008 penile prosthesis operation, and no additional disability was incurred as a result of either the May 2008 or March 2009 operation.  

Furthermore, the informed consents that were signed by the Veteran prior to both the May 2008 and March 2009 operations clearly stated that a known risk of both procedures was "patient or partner dissatisfaction with prosthesis performance."  Therefore, while the Veteran may have been dissatisfied with the outcome of the operations, this was a risk that was made known to him prior to each operation.

In sum, the Veteran did not develop an additional psychiatric disability as a result of either the May 2008 or March 2009 penile prostheses operations and dissatisfaction with the prosthesis performance was a known risk of the operations, of which the Veteran was fully aware.  Therefore, the Board finds that entitlement to compensation under 38 U.S.C.A. § 1151 is not warranted.  

Disability Ratings Generally

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.

Diabetes Mellitus with Microalbuminuria Disability Rating

The Veteran was granted service connection for type II diabetes mellitus in a March 2006 rating decision and assigned a 10 percent disability rating effective August 11, 2005 and a 20 percent disability rating effective February 26, 2006.  In a statement received in May 2006, the Veteran asserted that his type II diabetes mellitus had worsened and that he believed his disability warranted a higher rating.  

In his May 2006 statement, the Veteran explained that he was taking daily metformin to regulate his glucose level and that he was being followed at the San Juan VA Medical Center (VAMC).  

The Veteran was afforded a VA examination in January 2007.  At that time, the examiner noted that following his initial diabetes mellitus diagnosis in 2003, the Veteran was treated with a special diet and that in September 2006 he was placed on oral Metformin, twice daily, for diabetes control.  The examiner specifically noted in the VA examination report that the Veteran had not been restricted in his ability to perform activities, providing evidence against this claim.

The Veteran was afforded another VA examination in January 2010.  At that time, the examiner noted the Veteran was still being treated with oral Metformin, twice daily, and a special diet.  It was noted that he was not restricted in his ability to perform activities.  

Of record are extensive VA treatment records that indicate the Veteran receives treatment for a variety of disabilities, including his service-connected type II diabetes mellitus.  However, there is no indication in the VA treatment records associated with the claims file, that the Veteran's activities have been regulated to treat his diabetes mellitus.  

The Board finds that the criteria for a 40 percent rating have not been met.  In this regard, it is clear from the medical evidence of record that the Veteran does not have physician prescribed regulation of activities.  Therefore a disability rating in excess of 20 percent for type II diabetes mellitus is not warranted.  38 C.F.R. § 4.119, Diagnostic Code 7913.

The Board notes that the Veteran has filed a claim for a separate compensable disability rating for microalbuminuria.  However, the Board notes that microalbuminuria is merely a lab finding and not a separate disability for which a disability rating can be granted.  Therefore, the Board finds that the Veteran's microalbuminuria is more appropriately linked as a symptom associated with his service-connected diabetes mellitus.  

Consideration has also been given to assigning staged ratings; however, at no time during the period in question has the Veteran's peripheral neuropathy of the left and right upper extremities warranted higher schedular ratings.  See Hart v. Mansfield, 12 Vet. App. 505 (2007).

Lower Extremity Peripheral Neuropathy Disability Rating

The Veteran was granted service connection for peripheral neuropathy of the left and right lower extremities in a March 2007 rating decision, which assigned a 10 percent disability rating for each lower extremity.  In October 2007, the Veteran filed a claim for an increased rating for the 10 percent disability ratings assigned for his peripheral neuropathy of both his left and right lower extremities.  

The Veteran was afforded a VA examination in January 2010.  At that time, the Veteran reported symptoms of cramping in numbness in the soles of his feet.  He reported that he experienced a good response to Neurontin therapy and that his symptoms had improved since their onset.  He denied any history of hospitalization or surgery related to his bilateral lower extremity peripheral neuropathy or any history of trauma or neoplasm to the affected nerve.  

On physical examination; sensory findings included: decreased sense of vibration in the legs bilaterally; decreased pain in the legs bilaterally; decreased light touch in the legs bilaterally; and normal position sense.  Reflex examination was normal.  There was no muscle atrophy or abnormal muscle tone noted.  There were no tremors, tics, or other abnormal movement and the function of the joint was not affected.  The veterans gait and balance were noted to be normal.  The examiner noted that there was no paralysis or neuralgia, but neuritis was noted to be present.  The examiner noted that the effect on the Veteran's occupational activities included pain, feet cramps, numbness, and tingling sensation requiring breaks and rest.  The examiner noted that the Veteran's bilateral lower extremity peripheral neuropathy would have mild effects on his ability to engage in chores, shopping, recreation, and chores; moderate effects on his ability to exercise and play sports; and no effect on his ability to perform activities of feeding, bathing, dressing, toileting, and grooming.  

Also of record are extensive VA treatment records that show the Veteran receives regular treatment for a variety of disabilities.  However, these records do not show that the Veteran's symptoms of peripheral neuropathy in his left and right lower extremities are worse than those reported at his VA examination.  

Upon review of the evidence of record, the Board finds that the Veteran's peripheral neuropathy of the left and right lower extremities is productive of no more than mild impairment in either leg.  The Veteran has complained of cramping and numbness in his feet and some findings of decreased senses of vibration, pain, and touch in his legs bilaterally.  However, he has reported that his symptoms have improved since their onset with treatment.  Additionally, the Veteran was not found to have any muscle atrophy and his muscle tone and bulk was found to be normal, and his gait and balance have not been affected.  Furthermore, while the Veteran's ability to engage in exercise and sports is moderately affected, the affect of his disability on his other activities of daily living is mild to none.  Therefore, the Board finds that the preponderance of the evidence establishes that the Veteran's peripheral neuropathy of the left and right lower extremities is productive of no more than mild impairment in either leg.  As such, the criteria for a rating in excess of 10 percent, for either leg, have not been met.  38 C.F.R. § 4.124a , Diagnostic Code 8520.

Consideration has also been given to assigning staged ratings; however, at no time during the period in question has the Veteran's peripheral neuropathy of the left and right upper extremities warranted higher schedular ratings.  See Hart v. Mansfield, 12 Vet. App. 505 (2007).

Upper Extremity Peripheral Neuropathy Disability Rating

The Veteran was granted service connection for peripheral neuropathy of the left and right upper extremities in an October 2007 rating decision and assigned a 10 percent disability rating for each upper extremity.  In an October 2007 notice of disagreement the Veteran asserted that he was entitled to initial disability ratings in excess of the 10 percent disability ratings assigned in the October 2007 rating decision.  

The Veteran was afforded a VA examination in July 2007.  At that time, he reported numbness, dysesthesias, and a burning sensation in his hands.  On physical examination sensory findings were as follows: vibration was decreased in the hands bilaterally; pain was decreased in the hands bilaterally, light touch was decreased in the hands bilaterally; and position sense was normal bilaterally.  Reflex examination was normal.  There was no muscle atrophy noted and muscle tone and bulk was normal.  The examiner diagnosed mild peripheral neuropathy in the upper extremities and noted that paralysis and neuralgia were absent, but neuritis was present.  The examiner further noted that the Veteran's peripheral neuropathy had no affect on the Veteran's usual occupation or usual daily activities.  

The Veteran was afforded another VA examination in January 2010.  At that time, he reported cramps and numbness in the palms of his hands.  He also reported that his symptoms had improved since their onset with treatment.  He reported a good response to Neurontin therapy.  He denied any history of hospitalization or surgery related to his peripheral neuropathy of the upper extremities.  On physical examination, sensory function findings were as follows: decreased sense of vibration in the hands bilaterally; decreased pain in the hands bilaterally; decreased light touch in the hands bilaterally; and normal position sense.  There was no muscle atrophy present and muscle tone and bulk were normal.  The examiner noted that there was no paralysis or neuralgia, but neuritis was noted to be present.  The examiner noted that the effect on the Veteran's occupational activities included pain, numbness, and tingling sensation requiring breaks and rest.  The examiner noted that the Veteran's bilateral upper extremity peripheral neuropathy would have mild effects on his ability to engage in chores, shopping, recreation, and chores; moderate effects on his ability to exercise and play sports; and no effect on his ability to perform activities of feeding, bathing, dressing, toileting, and grooming.  

Also of record are extensive VA treatment records that indicate the Veteran receives regular treatment for various medical conditions.  However, the treatment records associated with the claims files, do not contain any evidence that the symptoms of the Veteran's peripheral neuropathy in his left and right upper extremities are worse than those reported at his VA examinations, or is not effectively managed by medication.  

After review of the evidence of record, the Board finds that that the Veteran's peripheral neuropathy of the left and right upper extremities is productive of no more than mild impairment in either arm.  The Board notes that the Veteran's peripheral neuropathy of the upper extremities has been rated under Diagnostic Code 8616, but as discussed above, the Rating Schedule provides that the criteria set out under Diagnostic Code 8516 shall be used when assigning a disability rating under Diagnostic Code 8616.  In this regard, the Veteran has complained of cramping and numbness in his hand and there have been some findings of decreased senses of vibration, pain, and touch in his hands bilaterally.  However, he has reported that his symptoms have improved since their onset with treatment.  Additionally, the Veteran was not found to have any muscle atrophy and his muscle tone and bulk was found to be normal.  Furthermore, while the Veteran's ability to engage in exercise and sports is moderately affected, the affect of his disability on his other activities of daily living is mild to none and the examiner at his July 2007 VA examination specifically noted that his peripheral neuropathy was mild.  Therefore, the Board finds that the preponderance of the evidence establishes that the Veteran's peripheral neuropathy of the left and right upper extremities is productive of no more than mild impairment in either arm.  As such, the criteria for a rating in excess of 10 percent, for either arm, have not been met.  38 C.F.R. § 4.124a , Diagnostic Codes 8516, 8616.

Consideration has also been given to assigning staged ratings; however, at no time during the period in question has the Veteran's peripheral neuropathy of the left and right lower extremities warranted higher schedular ratings.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Extra-Schedular Consideration

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  

The Court has held that the threshold factor for extra-schedular consideration is a finding on part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disabilities at issue are inadequate.  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the disability with the established criteria provided in the rating schedule for the disabilities.  If the criteria reasonable describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluations are therefore adequate, and no referral for extra-schedular consideration is require.  Thun v. Peake, 22 Vet. App. 111 (2008).

In the case at hand, the record reflects that the manifestations of the Veteran's type II diabetes mellitus, bilateral lower extremity peripheral neuropathy, and bilateral upper extremity peripheral neuropathy are contemplated by the schedular criteria.  There is no indication from the evidence of record that the Veteran has frequent hospitalizations or has even received frequent emergency treatment for any of his service-connected disabilities.  In this regard, the evidence of record shows that the Veteran's service-connected disabilities are currently well controlled with medication.  In sum, there is no indication that the average industrial impairment from the Veteran's combined disability picture would be in excess of that contemplated by the assigned ratings.  Additionally, the Board acknowledges that the Veteran has asserted he is unemployable as a result of his service-connected disabilities and the record indicates that he is in receipt of Social Security disability benefits.  However whether the Veteran has been rendered unemployable solely as a result of his service-connected disabilities is addressed in the remand portion of this decision below.  Accordingly, the Board has determined, that referral of this case for extra-schedular consideration is not in order.  

III. Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of numerous letters sent to the Veteran in November 2006, July 2007, December 2007, March 2009, September 2009, December 2009, February 2010, June 2011, and June 2012.  These letters informed the Veteran of what evidence is required to substantiate his claim and of his and VA's respective duties for obtaining evidence.  The Veteran was also informed of how VA assigns disability ratings and effective dates.  

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted.  In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277.  On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection.  Waters, 601 F.3d at 1278-1279.  Here, there is no evidence that the Veteran has been diagnosed with a disability manifested by nausea, loss of appetite, and abdominal pain; a headache disability; or a hearing loss disability.  Additionally, the only evidence that his skin disability is the result of his active service, to include anthrax vaccinations received therein are the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence.  Accordingly, the Board finds that referral for VA medical examination is not warranted as to these issues.  

With regard to the Veteran's claims of entitlement to compensation under 38 U.S.C.A. § 1151, the Board notes that no VA examination or opinion has been obtained.  However, as discussed above, there is absolutely no indication from the record that the Veteran has any additional disability resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or that was not reasonably foreseeable.  Therefore, the medical evidence of record is sufficient to decide the claims and no VA examination or opinion is warranted.  

As to the remaining issues discussed above, the Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the Veteran's service treatment records and VA outpatient treatment records, and he was afforded appropriate VA medical examinations.  Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claims discussed above.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

New and material evidence has been received to reopen a claim of entitlement to service connection for hypertension, to include as secondary to type II diabetes mellitus.  To this extent the appeal is granted.  

New and material evidence has not been received to reopen the claim of entitlement to service connection for hypercholesterolemia.  The appeal is denied.  

Entitlement to service connection for a bilateral eye disability is denied.  

Entitlement to service connection for nausea, loss of appetite, and abdominal pain, to include as secondary to anthrax vaccination, is denied.  

Entitlement to service connection for recurring headaches, to include as secondary to anthrax vaccination, is denied.  

Entitlement to service connection for hearing loss, to include as secondary to anthrax vaccination, is denied. 

Entitlement to service connection for a skin disability, to include as secondary to anthrax vaccination, is denied. 

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of implantation of penile prostheses is denied.  

Entitlement to compensation under38 U.S.C.A. § 1151 for an acquired psychiatric disability as a result of penile operation is denied.  

Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with microalbuminuria is denied.  

Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is denied. 

Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is denied.

Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is denied.  

Entitlement to a disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is denied. 


REMAND

The Board finds that additional development is required before the Veteran's remaining claims on appeal are decided.

At the outset, the Board notes that the Veteran was denied entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus in a July 2012 rating decision.  

At his January 2013 Board hearing, the Veteran expressed his desire to continue to pursue this issue on appeal  The Board finds that the statement made at his January 2013 Board hearing constitutes a timely notice of disagreement with the July 2012 denial of service connection.  A review of the record shows that the Veteran has not been furnished a statement of the case in response to his notice of disagreement.  Because a notice of disagreement places this issues in appellate status, the matter must be remanded for the originating agency to issue an SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

In January 2010 the Veteran was afforded a VA examination in connection with his claim of entitlement to an increased rating for his service-connected type II diabetes mellitus.  At that time the examiner opined that the Veteran's hypertension was not a complication of his diabetes, as there was no evidence of significant microalbuminuria at the time hypertension was initially diagnosed.  The examiner also opined that the Veteran's hypertension was not worsened or increased by his type II diabetes mellitus; however, no rationale for this opinion was provided.  The Board finds lack of a rationale supporting the opinion as to aggravation in the January 2010 VA examination report renders the opinion inadequate, and therefore, a new VA examination is necessary.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

With regard to the Veteran's claim of entitlement to a TDIU, the Board notes that the Veteran does not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a); however, because the Veteran's claim for TDIU is inextricably intertwined with his claims of entitlement to service connection for hypertension and erectile dysfunction, it must be remanded as well.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered inextricably intertwined and VA is required to decide those issues together).  

Accordingly, the case is REMANDED for the following action:

1. The RO should issue a statement of the case for the issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus.  See Manlincon v. West, 12 Vet. App. 238 (1999).  After the RO issues a statement of the case, then if, and only if, the Veteran timely files a VA Form 9, Substantive Appeal, or other correspondence containing the necessary information, this issue may be returned to the Board for adjudication.

2. The Veteran should be afforded a VA examination.  The examiner should review the claims files and provide a medical opinion regarding the issue of secondary service connection for hypertension.  Any medically indicated tests and studies should be conducted.

After review of the claims files and examination of the Veteran, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by (increased in disability by) his service-connected diabetes mellitus, type II.

The examiner must provide separate rationales for causation and aggravation including references to the record, to support his opinions.  

3. To help avoid future remand, the RO/AMC should ensure that all requested development is accomplished in compliance with this remand.  

4. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the remaining claims on appeal.  If the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), consideration should be given to whether referral for extraschedular consideration is warranted.  If any benefit sought remains denied, furnish the Veteran and his attorney with a supplemental statement of the case and afford them an appropriate opportunity to respond before the record is returned to the Board for further review.  

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).


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


Department of Veterans Affairs