Citation Nr: 1317318 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 08-39 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, as secondary to diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, as secondary to diabetes mellitus. 3. Entitlement to service connection for erectile dysfunction, as secondary to diabetes mellitus. 4. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to July 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, inter alia, denied the Veteran's claims for entitlement to service connection for peripheral neuropathy of right upper extremity, and left upper extremity, and entitlement to service connection for erectile dysfunction, with all claims to include as secondary to diabetes mellitus, and which granted service connection for diabetes mellitus, evaluated as 20 percent disabling. In September 2010, the Board remanded the claims for additional development. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran has peripheral neuropathy of the bilateral upper extremities. 2. The evidence of record does not show that erectile dysfunction was caused or aggravated by a service-connected disability. 2. The Veteran's diabetes mellitus is shown to have been manifested by the need for a restricted diet, and insulin, but not a restriction of activities. CONCLUSIONS OF LAW 1. Peripheral neuropathy of the bilateral upper extremities, and erectile dysfunction, were not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1116(f), 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 2. The criteria for an initial evaluation in excess of 20 percent for service-connected diabetes mellitus, type 2, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he is entitled to service connection for peripheral neuropathy of the bilateral upper extremities, and erectile dysfunction, as secondary to his service-connected diabetes mellitus. In his claim (VA Form 21-526), received in August 2007, the Veteran indicated that his diabetes began in January 1999. The Board notes that the Veteran has not asserted that service connection is warranted on a direct basis. He is not shown to have received treatment or a diagnosis for either of the claimed conditions during service. There is no competent opinion linking any of the claimed conditions to his service, and no evidence to show that an organic disease of the nervous system was manifested to a compensable degree within one year of separation from service. Service connection for either of the claimed conditions on a direct or presumptive basis is therefore not raised by the record. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record; Board is not required to sua sponte raise and reject "all possible" theories of entitlement in order to render a valid opinion). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2012). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Service connection is currently in effect for diabetes mellitus, type 2, coronary artery disease, status post fracture, right distal femur, peripheral neuropathy of the bilateral lower extremities, diabetic retinopathy, chronic kidney disease, bilateral hearing loss, and tinnitus. The Veteran's service treatment reports do not show any treatment for peripheral neuropathy, or erectile dysfunction. They are remarkable for the following: in June 1969, the Veteran was treated for complaints of burning during urination; there is a notation of G.N.I.D. (gram-negative intracellular diplococci). In January 1970, he was treated for complaints of a penile drip. The report notes gram-negative diplococci, intracellularly. In June 1978, he underwent a vasectomy. Examination reports, dated in October 1973, August 1976, August 1978, and June 1979, and the Veteran's separation examination report, dated in July 1984, all show that his upper extremities, and G-U (genitourinary) system, were clinically evaluated as normal. In the associated July 1984 "report of medical history," the Veteran denied having a history of foot trouble, or neuritis. As for the post-service medical evidence, it consists of a VA (to include Tri-Care) and non-VA reports, dated between 1984 and 2011. A VA examination report, dated in September 1984, and a report from W.B.H., M.D., dated in October 1984, do not contain any relevant findings, complaints, or diagnoses. Tri-Care reports, dated between 2001 and 2008, include a July 2001 report which shows that the Veteran was brought to the emergency room at DeWitt Army Community Hospital with complaints of right elbow pain status post MVA (motor vehicle accident). He was noted to have a past medical history of diabetes mellitus type 2. Thereafter, Tri-Care reports show that the Veteran was repeatedly noted to have diabetes mellitus, type 2. An August 2001 report further notes that the Veteran reported having an 18-month history of E.D. (erectile dysfunction), and a 2-year history of diabetes mellitus that was "not continuous"; another notation appears to note a 4-year history of diabetes. An October 2001 report notes hypertension, managed with use of medication. Beginning in 2004, the Veteran sought treatment for complaints of bilateral foot symptoms (a burning sensation in the balls of his feet); his medications were noted to include Neurotonin (gabapentin) and Viagra. Beginning in January 2006, the Veteran again complained of foot symptoms (numbness and tingling bilaterally), and he was noted to have peripheral neuropathy (not otherwise described). An October 2007 abdominal X-ray report contains an impression that includes atherosclerotic peripheral vascular disease. A report from S.L.F., M.D., dated in October 2007, shows that the Veteran sought treatment for complaints of bilateral foot numbness, tingling and pain. The impression was hemodynamically significant arterial occlusive disease of the lower extremities which is exacerbated with stress. Reports from Wiregrass Surgical Association (WSA), dated in January 2008, note that the Veteran had quit smoking one month before, and that he complained of pain in both legs, and foot swelling. He was noted to have a past medical history of diabetes and hypertension, as well as a family history of hypertension and ASCVD (atherosclerotic cardiovascular disease). WSA reports, dated in 2009, show treatment for lower extremity venous/artery symptoms. They show that the Veteran was not noted to have the risk factors of impotence, or upper arterial symptoms (listed as pain/tiredness, pallor/cyanosis, and positional pain). A VA examination report, dated in January 2008, shows that the examiner stated that the Veteran's claims file had been reviewed. The report shows that the Veteran reported a history of diabetes mellitus beginning in 1992, an 8-year history of erectile dysfunction, and a history of peripheral vascular disease and hypertension. He reported having a "pins and needles" sensation in his feet, and he denied any change in sensation in his upper extremities. The diagnoses included insulin-dependent diabetes mellitus type 2 with medical therapy, erectile dysfunction, and peripheral neuropathy of the lower extremities without objective residual. The examiner stated that the issues of whether the Veteran's peripheral neuropathy or erectile dysfunction were related to his diabetes mellitus could not be resolved without resort to mere speculation. A VA diabetes mellitus examination report, by K.F., M.D., dated in January 2011, shows that Dr. K.F. stated that the Veteran's claims file had been reviewed. The report shows that the Veteran reported a history of diabetes mellitus and hypertension since 1998, and that at that time, he was told that his diabetes had been present for at least ten years. He also reported that his erectile dysfunction began shortly after his 1998 diagnosis. He reported a history of smoking up to three years before. On sensory examination of the upper extremities, vibration, pain/pinprick, position sense, and light touch were all normal. There were no dysthesias. Strength in the fingers, elbows, and wrists, was 5/5. The diagnoses were diabetes, and erectile dysfunction. The examiner indicated that the Veteran's peripheral neuropathy was related to his diabetes mellitus. A VA peripheral nerves examination report, dated in January 2011, shows that the examiner was Dr. K.F. She stated that the Veteran's claims file had been reviewed. The report shows that the Veteran provided a history similar to that as reported in his January 2011 VA diabetes mellitus examination report. The report includes identical findings, as noted supra. Sensory and motor examination of the upper extremities were normal. Specifically: vibration, pain/pinprick, position sense, and light touch were all normal, and there were no dysthesias; and movement, strength, and muscle tone of the upper extremities were all normal. The diagnosis was peripheral neuropathy of the bilateral feet. A February 2012 addendum prepared by the above VA examiner, K.F., specifically states that "[t]here is no objective evidence of or diagnosis of peripheral neuropathy of either upper extremity . . ." A VA genitourinary examination report, dated in January 2011, shows that the examiner was Dr. K.F. She stated that the Veteran's claims file had been reviewed. The report shows that the Veteran provided a history of erectile dysfunction since 1998, with sudden onset. The diagnosis was complete erectile dysfunction, active, with no other residual. Dr. K.F. concluded that the Veteran's erectile dysfunction was less likely as not due to his service-connected diabetes mellitus, and that there is no objective evidence of aggravation. She explained that her conclusion was based on a review of medical literature and clinical experience. She noted that the Veteran had reported that his diabetes mellitus, hypertension, and erectile dysfunction were all diagnosed about the same time of an emergency room visit for abdominal pain ("stomach ache"), but that the earliest mention of diabetes is dated in August 2001, and that this report notes an onset two years before, with an onset of erectile dysfunction 18 months before. She stated that there is no objective evidence of diabetes mellitus in 1999, and that even if there were, 6 months of diabetes would not be sufficient to cause complete erectile dysfunction. She stated that the Veteran's description of "sudden onset" erectile dysfunction was not typical, and that generally erectile dysfunction due to diabetes mellitus is gradual, and not sudden. She stated that in any event, the earliest actual objective evidence of diabetes mellitus is in September 2001, when medication was started. She stated that any records from 1998-1999 would be helpful (as discussed infra, there is no indication of outstanding records). The Board finds that the claims must be denied. With regard to the claim for peripheral neuropathy of the bilateral upper extremities, the Board finds that the preponderance of the evidence shows that the Veteran does not have this disorder. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). The January 2008 VA examination report shows that the Veteran denied any change in sensation in his upper extremities. Both the January 2008 and January 2011 VA examination reports show that diagnoses only note peripheral neuropathy of the lower extremities. A February 2012 addendum specifically states that there is no evidence of upper extremity peripheral neuropathy. Although Tri-Care reports contain many notations of peripheral neuropathy, none of these notations indicate that the upper extremities are involved, and there are no associated neurological findings in the upper extremities to warrant the conclusion that the Veteran has peripheral neuropathy of the upper extremities. Rather, all neurological complaints pertained to the lower extremities. Therefore, these notations of peripheral neuropathy are not deemed to relate to upper extremity neuropathy; indeed, the evidence of record outweighs the Veteran's assertions of having upper extremity neuropathy. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Therefore, they are not afforded sufficient probative value to warrant the conclusion that the Veteran has peripheral neuropathy of the upper extremities. Under the circumstances, the Board finds that there is no current diagnosis of upper extremity peripheral neuropathy. Without a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the claim for peripheral neuropathy of the upper extremities must be denied. With regard to the claim for erectile dysfunction, this claim must also be denied. The Board first notes that the Veteran is shown to have a number of disorders for which service connection is not currently in effect which may be relevant to his condition, to include hypertension (in February 2009, the RO denied a claim for service connection for hypertension). In any event, there is no competent opinion in support of the claim. The only competent opinion is found in the January 2011 VA genitourinary examination report, and this opinion weighs against the claim. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. As a final matter, although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, the Veteran is not shown to have ever been diagnosed with acute or subacute peripheral neuropathy, there is no competent evidence to show that peripheral neuropathy, or erectile dysfunction, was caused by such exposure, Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994), and the applicable law does not include erectile dysfunction as a condition for which presumptive service connection may be granted on this basis. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). Accordingly, service connection is not warranted on this basis. In summary, the evidence does not show that the Veteran has peripheral neuropathy of the bilateral upper extremities, or erectile dysfunction, that is related to a service-connected disability. The Board therefore finds that the service and post-service record (overall) provides evidence against these claims, outweighing the appellant's statements and the lay statement, and the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. With respect to the Veteran's own contentions, and the lay statement, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran asserts that the claimed conditions were caused or aggravated by a service-connected disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case (i.e., whether peripheral neuropathy of the upper extremities, or erectile dysfunction, were caused or aggravated by a service-connected disability), falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Increased Initial Evaluation - Diabetes Mellitus In March 2008, the RO granted service connection for diabetes mellitus type 2, evaluated as 20 percent disabling, with an effective date for service connection of August 17, 2007. The Veteran has appealed the issue of entitlement to an increased initial evaluation. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. 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 (2012). With regard to the history of the disability in issue, see 38 C.F.R. § 4.1, the Veteran's service treatment reports do not show any relevant treatment; the RO has granted service connection based on the presumption afforded to veterans exposed to Agent Orange, based upon the Veteran's service in the Republic of Vietnam. The post-service medical records include reports dated as early as 2001, which show that the Veteran was determined to have diabetes mellitus. A January 2007 Tri-Care report noted that his diabetes was well-controlled. A May 2007 Tri-Care report noted that he was exercising regularly. The Veteran's diabetes mellitus is currently assigned a 20 percent rating pursuant to 38 C.F.R. § 4.119 , Diagnostic Code (DC) 7913. Under those criteria, a 20 percent rating is warranted for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. The next higher rating, 40 percent rating is warranted for diabetes mellitus that requires insulin, a restricted diet, and regulation of activities. Id. Regulation of activities is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360, 363-364 (2007). "Successive" rating criteria, such as Diagnostic Code 7913 for diabetes mellitus, is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). For example, the diagnostic code for diabetes mellitus (DC 7913) is successive because each higher evaluation requires the elements of the lower evaluation: the 10 percent evaluation requires a restricted diet; the 20 percent evaluation requires a restricted diet and insulin or oral hypoglycemic agent, the 40 percent evaluation requires insulin, restricted diet, and regulation of activities; and so forth. Camacho, 21 Vet. App. at 366. The relevant medical evidence is summarized as follows: Tri-Care reports, dated between the date of service connection and 2010, show that the Veteran has repeatedly been noted to have diabetes mellitus, and to require insulin. A May 2008 report notes that he was using insulin, and that he was on a restricted diet. Reports, dated in April and June of 2010, note that his diabetes was uncontrolled. A VA examination report, dated in February 2008, shows that the examiner stated that the Veteran's claims file had been reviewed. The report shows that the Veteran reported that he was on oral hypoglycemic, and insulin. The report notes that there was no history of ketoacidotic episodes or other hospitalizations, although there was a history of hospitalization in 1994 for hyperglycemia. The report states, "There have been no restricted activities due to diabetes." A VA examination report, dated in January 2011, shows that the examiner indicated that the Veteran's claims file had been reviewed. The report notes that the Veteran is taking insulin, and that he is on a restricted diet. He reported having hypoglycemia once or twice per week, and a history of a 2007 hospitalization for hyperglycemia. The report states that the Veteran is not restricted in his ability to perform strenuous activities. The relevant diagnosis was diabetes mellitus, type 2. The Board finds that the Veteran's increased initial evaluation claim must be denied. Although the Veteran requires insulin for control of his symptoms, as well as a restricted diet, the evidence is insufficient to show that the Veteran's diabetes requires a regulation of activities, as that term is defined in the applicable regulation. DC 7913; Camacho. Accordingly, as the evidence is insufficient to show that the Veteran's diabetes has required a restriction of activities at any time during the rating period on appeal, the Board concludes that his symptoms more closely approximates the criteria for the currently assigned initial evaluation of 20 percent. In deciding the Veteran's increased initial evaluation claim, the Board has considered the determination in Fenderson and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation during any time within the appeal period. The Board therefore finds that the evidence is insufficient to show that the Veteran had a worsening of his diabetes mellitus, such that an increased initial evaluation is warranted. In conclusion, there is no basis for an initial evaluation in excess of 20 percent for diabetes mellitus, for any portion of the rating period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Consideration has also been given to whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008) (noting that the issue of an extraschedular rating is a component of a claim for an increased rating and referral for consideration must be addressed either when raised by the veteran or reasonably raised by the record). In determining whether an extra-schedular evaluation is for consideration, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-16. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1) (2012); Thun, 22 Vet. App. at 116. The schedular evaluation in this case is not inadequate. When comparing the Veteran's disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that manifestations of the service-connected diabetes mellitus are congruent with the disability picture represented by the disability rating assigned herein. The criteria for the 20 percent rating assigned herein more than reasonably describes the Veteran's disability level and symptomatology. The Veteran is shown to require insulin, and a restricted diet. As the Board finds that the Veteran's disability picture is contemplated by the rating schedule, the inquiry ends and the Board need not consider whether the disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Accordingly, referral for consideration of an extra-schedular rating is not warranted. III. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). With regard to the claim for an increased initial evaluation, this claim was granted in March 2008, and the issue on appeal (i.e., entitlement to an increased initial evaluation) arose from this grant of service connection. In such cases, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled; no additional § 5103(a) notice is required. Dingess/Hartman, 19 Vet. App. 473, 491-93 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA, Tri-Care, and non-VA medical records. The Veteran has been afforded VA examinations, and etiological opinions have been obtained. In September 2010, the Board remanded these claims. The Board directed that the Veteran be asked to identify all of the health care providers that have treated him for his service-connected diabetes mellitus, and attempt to obtain records from each health care provider he identifies that might have available records, if not already in the claims file. In September 2010, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand instructions. Thereafter, Tri-Care records, dated between 2008 and 2010, and WSA records dated in 2009, were obtained. The Board also directed that the Veteran be scheduled for examinations, to include etiological opinions as to the service connection claims on appeal, and to determine the extent and severity of his service-connected diabetes mellitus. In January 2011 (as supplemented by the February 2012 addendum), this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against these claims. The Board concludes, therefore, that decisions on the merits at this time do not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs