Citation Nr: 1318154 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 94-27 311 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to service connection for diabetes mellitus with headaches, impaired vision and boils, including as secondary to service-connected coronary artery disease. 2. Entitlement to an extraschedular evaluation in excess of 50 percent for peripheral vascular disease, right lower extremity, for the period August 5, 1985 to January 12, 1998. 3. Entitlement to an extraschedular evaluation in excess of 50 percent for peripheral vascular disease, left lower extremity, for the period August 5, 1985 to January 12, 1998. REPRESENTATION Appellant (the Veteran) is represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from February 1955 to February 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a September 1993 rating decision of the RO in Denver, Colorado, which denied service connection for diabetes mellitus, and from a September 2004 rating decision of the same RO, which granted an increased 50 percent rating for peripheral vascular disease prior to January 12, 1998. This appeal has a long history before the Board. The appeal was remanded in May 1996 by a Veterans Law Judge who has since retired from the Board, in order to fulfill the Veteran's request for Board hearing. The Veteran testified in October 1996 before a second Veterans Law Judge, who has also since retired. The transcript of that hearing is of record. In April 1997, that Judge remanded the appeal for adjudication of service connection for diabetes mellitus on a direct service connection basis. The Veteran again testified in February 2001 at a Board hearing, this time before the first Veterans Judge. The transcript of that hearing is of record. In July 2001, the first Judge remanded the appeal for additional evidentiary development. The Veteran requested yet another hearing in March 2006, and the appeal was remanded by the second Judge in April 2006, delaying the case once again. In an April 2009 decision signed by the second Veterans Law Judge, the Board (correctly) noted that the Veteran had since withdrawn his third hearing request and the Board denied service connection for diabetes mellitus with headaches, impaired vision, and boils, and entitlement to an initial evaluation in excess of 50 percent for peripheral vascular disease of both lower extremities for the period August 5, 1985 to January 12, 1998. The Veteran subsequently appealed those issues to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2010 Order, the CAVC granted a Joint Motion for Remand (JMR), vacated the Board's April 2009 decision, and remanded these issues to the Board for readjudication. In August 2010 and July 2011 remands, each signed by the second Veterans Law Judge, the Board remanded the appeal to the RO to accomplish the additional development specified in the Joint Motion. At that time, the Board was focusing its attention on the actions requested by the JMR in light of a record that had been significantly distorted by what appears to have been the DOR process at the Court (this is not totally apparent, but appears highly likely following a detailed review of the record, particular when one reviews the placement of the pink "PASTE" sheets within the claims file, part of the DOR process). The file was reassembled incorrectly (no records were lost). In May 2012, the Board remanded the issue of service connection for diabetes mellitus for consideration of the additional information under procedure for claims based on herbicide exposure in Thailand. The Board also denied a higher schedular rating for peripheral vascular disease but found that extraschedular referral was warranted and remanded those issues so that this could be accomplished. In March 2013, the appeal came before the undersigned Veterans Law Judge; however, a review of the voluminous record revealed that a file containing the results of the prior remands had not been associated with the Veteran's claims file. The Board again remanded the appeal to obtain the missing file. The case has now returned to the Board for further appellate action. Regarding the stipulation in the Joint Motion that the Board should verify the Veteran's wishes regarding his third request for a Board hearing, notwithstanding his other hearing, the Veteran's attorney verified, in correspondence dated July 19, 2011, that the Veteran "no longer desires a BVA hearing." The Board notes that the evidence within the (8) eight claims files is filed substantially out of order, rendering any reliable determination as to the evidence present and of record at any given time during the appeal impossible. A detailed review of this records and a history of this case indicates that this appears to have occurred when the claims files were disassembled in preparation of a Designation of the Record (DOR) at the Veteran's Court (CAVC). Remedial action was not taken by the parties of the JMR. This has undoubtedly resulted in delays in processing the appeal at every stage. It may also have contributed to a more substantial omission, that will be addressed below. As will be discussed in more detail below, the parties to the February 2010 Joint Motion failed to identify crucial evidence linking the onset of diabetes mellitus to service, but instead, moved the CAVC to vacate and remand the Board's prior decision regarding service connection for diabetes mellitus so that the Board could adjudicate service connection on a secondary basis (an issue that is, at best, of limited consequence in this case). While the Board does not purport to excuse the same omission on the part of prior Veterans Law Judges, the failure of the parties to the Joint Motion to identify or even discuss the evidence that the Board will address below, as well as the problems that appear to have been associated with the DOR, causing delay in the adjudication of this case, has compounded the unfortunate delay in providing the Veteran a final decision. The Veteran should be aware that the Board has reviewed this case in extensive detail to address the problems cited above. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The evidence tending to establish onset and chronicity of diabetes mellitus during service is in approximate balance with the evidence tending to establish a post-service onset. 3. The Veteran's visual impairment is a result of cataracts, which are associated with diabetes mellitus. 4. The Veteran does not have chronic headaches or boils. 5. For the entire period from August 5, 1985 to January 12, 1998, the symptoms associated with the service-connected peripheral vascular disease of the right and left lower extremity have been fully contemplated by the criteria in the rating schedule, and have not resulted in marked interference with employment or frequent hospitalizations. CONCLUSIONS OF LAW 1. With resolution of all reasonable doubt in the Veteran's favor, diabetes mellitus was incurred in service. 38 U.S.C.A. §§ 337, 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Cataracts are proximately due to or a result of diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. The basic criteria for service connection for boils are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 4. The basic criteria for service connection for headaches are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 5. The criteria for a disability rating on an extraschedular basis in excess of 50 percent for peripheral vascular disease of the right lower extremity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59 (2012), 38 C.F.R. § 4.104, Diagnostic Codes 7114, 7116 (1997). 6. The criteria for a disability rating on an extraschedular basis in excess of 50 percent for peripheral vascular disease of the left lower extremity have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59 (2012), 38 C.F.R. § 4.104, Diagnostic Codes 7114, 7116 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In rendering a decision on this appeal, the Board must analyze the credibility and probative value of the evidence. In so doing, the Board must account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336(Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The CAVC has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303(2007); Davidson v. Shinseki, 581 F.3d 1313(Fed. Cir. Sept. 14, 2009). Service Connection Claims The Veteran is seeking service connection for diabetes mellitus on multiple bases, including that it is related to exposure to Agent Orange or other herbicide agents during his service in Thailand, that it is proximately due to or a result of his service-connected hypertension, and that it is a chronic disease that was first manifest in service. He is also seeking service connection for boils, headaches, and visual impairment, which he asserts are related to his diabetes mellitus. For the reasons next addressed, the Board finds that the evidence tending to establish onset of diabetes mellitus during service is in approximate balance with the evidence tending to establish a post-service onset. With resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for diabetes mellitus is warranted. The Board also finds that service connection is warranted for cataracts, which have been associated with diabetes mellitus. However, as there is no current chronic disability regarding headaches and boils, service-connected is not warranted for those claims. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The CAVC has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Certain specific conditions are considered chronic diseases under VA Law. These include diabetes mellitus, but do not include cataracts, headaches, or boils. 38 C.F.R. § 3.309(a). Where diabetes mellitus is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Diabetes mellitus is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore the presumption of service connection under 38 C.F.R. § 3.307 and the provisions regarding chronicity and continuity under 38 C.F.R. § 3.303(b) must be addressed. See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb 21, 2013). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and diabetes mellitus became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. While service treatment records reflect no treatment of diabetes mellitus in service, and reports of medical examinations dated in January 1959, July 1966, March 1968, and at service separation in October 1974, reflect that the Veteran's endocrine system was clinically normal, a detailed review of the record indicates a blood glucose reading of 110 Mg% was recorded during the examination in October 1974. The scale of normal readings was noted as running from 60 to 110 Mg%. Thus, the reading, while normal, was borderline high. After service, when examined by VA in August 1998, the Veteran reported that an abnormal glucose tolerance test in March 1978, during a routine physical, had resulted in the initial diagnosis of diabetes mellitus. The August 1998 examiner opined, after reviewing the evidence, that the diabetes mellitus first became manifest in March 1978; however, the August 1998 examiner did not discuss the in-service blood glucose reading. In addition, the August 1998 examiner did not discuss a May 1976 post-service blood glucose reading of 117 Mg%, which was fully out of the normal range, and which was noted as high. As noted above, the Veteran had active service from February 1955 to February 1975. Other evidence supports the Board's finding that, while diabetes mellitus was not officially diagnosed prior to 1978, the symptoms of diabetes mellitus where in fact chronic in service. The Veteran testified in 1997 that, while being treated at Fitzsimons Army Medical Center in 1976, shortly after service separation in February 1975, the doctors would tell him that they thought he was a borderline diabetic. In this regard, the Veteran is competent to relate information that a doctor has relayed to him. The Veteran's recollection appears to be supported by a notation in an October 1976 treatment report that the Veteran has not had his fasting blood drawn yet. It is unclear whether the concern arose from the previous elevated reading in May 1976; however, the notation supports and does not undercut the Veteran's recollection as to concern being expressed regarding borderline diabetes. There appears no doubt that diabetes mellitus was not diagnosed until 1978. The Veteran asserted in a May 1994 VA Form 9 that the initial diagnosis of diabetes mellitus was in April 1978. Moreover, a December 1979 private treatment record notes that the Veteran was "recently" diagnosed with diabetes mellitus and that this was a "new" diagnosis. However, the date of the initial diagnosis is not determinative. For chronic diseases such as diabetes mellitus, non-chronic symptoms of diabetes mellitus in service with continuity of such symptoms after service are sufficient to overcome the lack of a chronic diagnosis in service, including the blood readings cited above (which were very difficult to find in light of the fact that the eight claims files are substantially out of order, for reasons cited above). The evidence weighing against the claim consists of the lack of a diagnosis rendered at the time of the May 1976 higher blood glucose reading. The evidence weighing in favor of the claim includes the upper-normal blood glucose reading in service, the elevated blood glucose reading 15 months after service, and the Veteran's account that his doctors expressed concern that he was borderline diabetic. The Board finds that there is an approximate balance of the evidence regarding whether the Veteran's diabetes mellitus was in fact chronic in service, notwithstanding the lack of a diagnosis. With resolution of reasonable doubt in the Veteran's favor, the Board finds that symptoms of diabetes mellitus were chronic in service. Accordingly, service connection for diabetes mellitus is warranted. Regarding the Veteran's reduced vision, a VA examination in February 2011 reveals the presence of a cataract in each eye. The examiner opined that the cataracts were the cause of the Veteran's mildly reduced vision in each eye and that the cataracts were related to diabetes mellitus. As diabetes mellitus is a service-connected disability, the Board finds that service connection for cataracts is warranted. Regarding the claimed headaches, the February 2011 VA examiner noted the Veteran's account of headaches in the military in approximately 1955. He reported that his headaches would begin with visual scotomata in the bilateral eyes and he would then develop a generalized headache associated with upset stomach and nausea. There was no associated vomiting. These headaches occurred approximately once a month and lasted 1-2 hours. He had these headaches up until approximately 1982 when they seemed to gradually go away. He reported that he might have had two or three more headaches in the 1980s, but since then he has had no recurrence of any headaches, providing evidence against this own claim. The examiner concluded that migraine headaches had resolved with no residuals. He further opined that the past headaches were less likely as not related to diabetes mellitus and/or coronary artery disease. According to the examiner, there is no medical data which would suggest that diabetes mellitus and/or coronary artery disease might cause or aggravate migraine headaches. Migraine headaches are also not an early manifestation of diabetes mellitus. Regarding boils, the Veteran reported to the February 2011 examiner that he had occasional boils in his bilateral armpits and occasionally in the groin area from approximately 1960 to 1974. He reported that he did not treat these in any way and they resolved on their own. However, he developed a large boil in the groin area approximately in the summer of 1974. He was seen in November 1974 at Fitzsimmons Hospital where this was treated. There were several visits in November and December of 1974 for treatment of an upper leg abscess. He reported that, since that episode, he has had no further boils in any location. He also reported that he has no residuals related to the incision and drainage. The examiner opined that the Veteran's past furuncles ("boils") had resolved without residuals and were less likely as not related to diabetes mellitus. This is based on the fact that the furuncles occurred well before the onset of the diabetes mellitus. A March 1993 VA examination also notes that the Veteran used to develop boils in his groin and scrotum area, but has been asymptomatic since 1974, providing highly probative evidence against this claim. The Veteran's testimony has been consistent with the clinical findings. In essence, he contends that the boils and headaches were early symptoms of diabetes mellitus, but he does not contend that he has current chronic disabilities manifested by headaches or boils. The presence of a disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service-connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. As established by the CAVC, the definition comports with the everyday understanding of disability, which is defined as an "inability to pursue an occupation because of physical or mental impairment." Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that, while the Veteran did not report current headaches to the February 2011 examiner, a May 1993 VA examiner noted headaches associated with eye strain. However, he did not diagnose a chronic disability manifested by such headaches. To the extent that there are any current symptoms, such as occasional headaches associated with eye strain, VA does not generally grant service connection for symptoms alone, without an identified disability. The February 2011 examiner's opinion is persuasive evidence that there is no current chronic disability manifested by headaches. Accordingly, service connection cannot be granted for symptoms. In sum, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that service connection for diabetes mellitus is warranted. Moreover, service connection for the secondary condition of cataracts is also warranted. However, as there are no current chronic residuals of in-service boils and headaches, the basic criteria for service connection are not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against service connection for headaches and boils, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Rating Claims The current appeal is based on an assertion of entitlement to an increased rating on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) for peripheral vascular disease from August 5, 1985 to January 12, 1998. The issue of entitlement to a schedular rating in excess of 50 percent is subject to a final Board decision and will not be further addressed. The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). Of course, the Board will not here adjudicate entitlement to a higher rating on the basis of the rating schedule, as that issue has been resolved and is no longer on appeal. However, the disability is currently rated under Diagnostic Code 7114, and that code is the point of comparison for purposes of evaluation of entitlement to an extraschedular rating. The Board must consider the provisions of the rating schedule to determine whether they fully contemplate the Veteran's symptoms. As in effect prior to January 12, 1998, Diagnostic Code 7114 applied to arteriosclerosis obliterans and was rated under the criteria outlined under Diagnostic Code 7116, for intermittent claudication. Under this code, well-established cases, with intermittent claudication or recurrent episodes of superficial phlebitis warranted a 40 percent rating. A 60 percent rating required persistent coldness of extremity with claudication on minimal walking. A 100 percent rating was warranted if the intermittent claudication was manifested in severe form with marked circulatory changes such as to produce total incapacity or to require house or bed confinement. 38 C.F.R. § 4.104, Diagnostic Code 7116 (1997). The Notes associated with this diagnostic code are set out in pertinent part as follows: Note: The 100 percent rating will not be applied under a diagnosis of intermittent claudication. Note: The schedular evaluations in excess of 20 percent are for application to unilateral involvement. With bilateral involvement, separately meeting the requirements for evaluation in excess of 20 percent, 10 percent will be added to the evaluation for the more severely affected extremity only, except where the disease has resulted in an amputation. The resultant amputation rating will be combined with the schedular rating for the other extremity, including the bilateral factor, if applicable. 38 C.F.R. § 4.104 (1997). Service connection for peripheral vascular disease was granted in the September 1993 rating decision, with a single 20 percent schedular rating assigned for both lower extremities under Diagnostic Code 7116, effective September 22, 1992. In an October 1998 rating decision, an earlier effective date of April 11, 1991 was assigned for the grant of service connection. Separate schedular ratings were also established for the left and right lower extremity in that decision, with 40 percent ratings assigned for each lower extremity, effective May 1, 1998. In July 2001, the Board found that an effective date of August 5, 1985 should be assigned for the grant of service connection for peripheral vascular disease. The Board also found that the effective date for the assignment of separate 40 percent schedular ratings for each lower extremity should be January 12, 1998. In a September 2004 rating decision, the RO implemented the Board's decision with respect to the earlier effective dates and also assigned an increased 50 percent schedular rating from August 5, 1985 to January 12, 1998. The Veteran disagreed with the rating assigned prior to January 12, 1998. In a May 2012 decision, the Board denied a rating in excess of 50 percent on a schedular basis and remanded the question of an extraschedular rating for referral to the Director of VA's Compensation and Pension Service (Director). The decision of the Director was that an extraschedular rating was not warranted. The Director cited a VA opinion from a vascular surgeon in June 2004 regarding the extent and severity of the Veteran's peripheral vascular disease prior to January 12, 1998. The surgeon found that, overall, the Veteran's recorded symptoms, vascular laboratory studies, and physical findings prior to January 12, 1998 for both legs are best described by the schedular criteria under diagnostic code 7116 necessary for a 40 percent evaluation. The surgeon also opined that the Veteran's peripheral vascular disease does not reach the severity of the criteria required for a higher evaluation of 60 percent due to lack of "persistent coldness." For much of this time period, it appears the Veteran was able to "walk through" the claudication symptoms; peripheral vascular disease symptoms at rest were not described until July 1998. The Director noted that there were no surgeries, hospitalizations, or emergency room visits to treat the peripheral vascular disease noted in the available medical evidence for the time period of this review. The Director concluded that no unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The evidentiary record does not demonstrate that the symptomatology consistently associated with the bilateral peripheral vascular disease for the time period of this review is not wholly contemplated by the criteria utilized to assign the single 50 percent evaluation. Evidence shows that the Veteran's peripheral vascular disease did cause some mild limitations from 1985 to 1998. Evidence does not demonstrate that the Veteran's service-connected bilateral peripheral vascular disease prevented him from performing a substantially gainful occupation or caused marked interference with employment. Accordingly, the Director concluded that entitlement to an extra-schedular evaluation for bilateral peripheral vascular disease from August 5, 1985 to January 12, 1998 is not established. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the symptomatology associated with the Veteran's right and left lower extremity peripheral vascular disease, including intermittent claudication and pain associated with brisk walking and climbing, decreased pulses, and mild atrophic changes, without persistent coldness, is contemplated by the rating schedule, and that an extraschedular rating is not warranted. As noted by the Director, in June 2004, a VA specialist in vascular surgery reviewed the claims file and provided a medical opinion about the severity of the Veteran's peripheral vascular disease of the lower extremities prior to January 12, 1998. The opinion noted that the Veteran was closely followed for multiple medical problems. The first documentation of symptoms consistent with peripheral vascular disease dated to a September 28, 1994 progress note, which noted "? Left leg claudication." The Veteran underwent non-invasive vascular studies in March 1985, which showed abnormalities in both legs, the ankle/brachial index on the right was 0.77 and the left of 0.63 (normal greater than 0.95). Interpretation of the studies was bilateral high superficial femoral artery occlusions, left greater than right, and mild aorto-iliac disease on the left. When seen in the Vascular Surgery Clinic on March 11, 1985, the Veteran gave a history of onset of left calf claudication approximately 3 years prior with minimal progression of left leg symptoms. He reported pain when walking approximately 1 block, especially uphill, but denied pain at rest or symptoms in right leg. Physical examination in March 1985 showed the feet to be warm without lesions. There were trace dorsalis pedis pulses bilateral and decreased femoral pulses bilaterally, as well as mild atrophic changes. The assessment was mild disease with minimal symptoms, providing highly probative evidence against this claim. The June 2004 opinion further noted that, while the VA primary care provider continued to document intermittent claudication symptoms at almost every clinic visit, and March 1985 vascular lab studies documented peripheral vascular disease in both legs, the first definite reference to bilateral claudication symptoms dates to a VA examination in March 1986, when the Veteran wrote on VA Form 21-2545, "Since 1980, [I] notice pain in legs when walking briskly or up an incline or up stairs. Became much more noticeable and much worse. It seems to come and go." It was further noted that, as well documented in the Veteran's VA vascular surgery progress notes, vascular lab results, and VA examinations, between 1984 and 1998 the Veteran had well-documented peripheral vascular disease affecting both legs. While objectively, the Veteran had peripheral vascular disease affecting both legs as early as March 1985, the left leg was more symptomatic, with initial right leg complaints not clearly documented until March 1986. Careful reading of the available clinical reports from September 1984, when claudication symptoms were first documented to the September 1998 VA examination shows a gradual worsening of symptoms in both legs, with the left leg clearly somewhat more symptomatic than the right throughout this period. The June 2004 examiner opined that, while the left leg was somewhat worse objectively (lower ankle/brachial index) and symptomatically than the right leg, overall, the Veteran's recorded symptoms, vascular laboratory studies and physical findings prior to January 1998 for both legs are best described as a well established case with intermittent claudication or recurrent episodes of superficial phlebitis. The June 2004 examiner concluded that the Veteran's peripheral vascular disease does not reach the severity of persistent coldness of an extremity with claudication on minimal walking, because persistent coldness is not described during the majority of this period. Further, for much of the 13 year period, it appears that the Veteran was able to walk through the claudication symptoms; peripheral vascular disease symptoms at rest were not described until July 1998. Finally, ankle/brachial indices, while somewhat variable due to inherent limitations of the methodology, are not consistent with severe peripheral vascular disease (less than 0.5). In addition to the thorough review conducted by the June 2004 examiner, the Board also notes that the Veteran reported in October 1990 correspondence with VA that he can do very little walking because of the pain in his legs. He has to slow down or stop to ease the pain. He complained at an April 1991 examination of pain in the legs and feet "very cold." The Veteran reported that he may be able to walk one mile at his own pace on a good day. One flight of stairs causes him to suffer from fatigue. He is unable to walk as far as he used to and has given up running altogether. Onset of claudication causes him to slow down to a snail's pace or stop. The report of VA examination in May 1993 reveals the Veteran's report that he will develop claudication after walking for approximately one block; he will attempt to continue to walk for another one-half block, which on occasion will help his symptoms; however, he has to stop walking by one and one-half blocks in most cases. On examination, he was noted to have normal skin temperature and diminished pulses in the dorsalis pedis and posterior tibial, which were barely palpable bilaterally. An October 1986 treatment report notes "very intermittent" claudication. A October 1988 report notes that sometimes he can walk as far as he wants, other times, just 1 block. A July 1989 report notes that the Veteran walked 1 mile the previous week. A January 1992 report notes variable claudication. An August 1997 report notes that he can walk from 1/2 block to 2 or 3 blocks, depending on the day. The Board finds the June 2004 specialist's opinion to be very persuasive regarding the Veteran's symptomatology and resulting impairment during this period. The opinion is based on a thorough review and discussion of the evidence. The other evidence not specifically addressed in the report is consistent with, and does not contradict the specialist's opinion. Based on the description of the Veteran's symptoms during this period, the Board finds that the Veteran's peripheral vascular disease symptomatology is fully contemplated by the rating schedule, and therefore an extraschedular rating is not warranted. Also notable in the Board's finding that the Veteran's symptoms are contemplated by the rating schedule is the fact that the rating schedule contains higher ratings than currently assigned. Those ratings are available where the appropriate degree of symptomatology is shown. The June 2004 opinion demonstrates that the Veteran's claudication, while at times severe, was intermittent and was not present at rest. Moreover, there was not persistent coldness. Thus, the requisite symptomatology for a higher rating was not shown. The Veteran's symptoms of intermittent claudication and pain associated with brisk walking and climbing, decreased pulses, and mild atrophic changes, without persistent coldness, are encompassed by the schedular rating criteria. Indeed, without consideration of these factors, the current evaluation could not be justified, let alone a higher evaluation. A review of the record also reveals that there has not been a marked interference with employment that is attributable to the lower extremity vascular disabilities. Employment records from April 1986 to August 1986 reveal that the Veteran missed a total of 50 hours of work for unspecified reasons during this 5-month period. The Veteran has not explained whether all of this time was attributable to peripheral vascular disease; however, even if it were, the amount of time lost over the time period submitted does not appear to be unreasonable and does not constitute marked interference with employment. Moreover, the disabilities have also not resulted in frequent hospitalization. The Board also finds the decision of the Director of VA's Compensation and Pension Service to be persuasive regarding entitlement to an extraschedular rating. This evidence reflects that the Veteran's symptoms are not unusual, but are fully contemplated by the rating schedule. In sum, the Board finds that an increased rating in excess of 50 percent is not warranted on an extraschedular basis for either lower extremity. The Veteran's lower extremity vascular disabilities are manifested by intermittent claudication and pain associated with brisk walking and climbing, decreased pulses, and mild atrophic changes, without persistent coldness. These symptoms significantly impact his ability to engage in an occupation; however, the schedular criteria fully contemplate the Veteran's symptomatology. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The rating schedule provides for higher ratings where the appropriate type and degree of symptomatology is shown. Moreover, the impact of the Veteran's lower extremity vascular disabilities on employment is not marked, particularly when considered in isolation from his other disabilities. There have been no hospitalizations for either disability. For these reasons, the Board finds that the weight of the evidence is against a rating in excess of 50 percent for either lower extremity vascular disability on an extraschedular basis. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The CAVC issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Because the appeal as to peripheral vascular disease arises from the Veteran's disagreement with the initial evaluation following the grant of service connection, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the CAVC have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for 'downstream' issues following a service connection grant, such as initial rating and effective date claims). As the Board is granting service connection for diabetes mellitus and cataracts, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Regarding boils and headaches, the Veteran submitted his initial claim for service connection in September 1992, well prior to the enactment of the VCAA. He was sent a letter in July 2003, which advised him of the information and evidence necessary to substantiate his claim of service connection. In August 2006, the Veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. To the extent that the timing of this notice was inadequate, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The claim was readjudicated after notice was provided. Moreover, since the Board has found that the preponderance of the evidence is against entitlement to service connection, a decision as to the appropriate disability rating and effective dates to be assigned are not reached in this decision. Additional notice was provided to the Veteran in September 2010 and November 2010, which included notice of the evidence necessary to substantiate a claim for service connection on a secondary basis. The claims were subsequently readjudicated following this notice. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service treatment records, and post-service treatment records at the Fitzsimons Army Medical Center, as well as post-service VA and private treatment records, and the Veteran's written assertions and personal hearing testimony. The Veteran has not indicated that he has applied for disability benefits from the Social Security Administration (SSA). Electronic records demonstrate that he began receiving SSA payments in 1999 due to age. In addition, the Veteran was afforded a VA examination to address the existence, nature, and etiology of claimed headaches and boils. This examination is found to be adequate because it was performed by a medical professional based on a review of claims file, solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. Moreover, the resulting diagnosis and opinion was accompanied by a rationale that is consistent with the examination findings and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Citation to the JMR is superfluous, for reasons noted above. As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's March 2013 remand instructions by obtaining the temporary file and associating it with the claims file. The Board's May 2012 remand instructed the RO to complete development of the Veteran's claim for service connection for diabetes according to the procedures outlined in the May 2010 Compensation and Pension letter "New Procedures for Claims Based on Herbicide Exposure in Thailand." This was accomplished. The Board has decided the claim on another basis. The May 2012 remand also instructed the RO to refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for peripheral vascular disease of both lower extremities, in accordance with the provisions of 38 C.F.R. § 3.321(b). The Director of Compensation and Pension provided a decision regarding referral in August 2012. In sum, the Board finds that there has been substantial compliance with its remand instructions, and no additional remand for corrective action is necessary. ORDER Service connection for diabetes mellitus is granted. Service connection for cataracts is granted. Service connection for boils is denied. Service connection for headaches is denied. An extraschedular evaluation in excess of 50 percent for peripheral vascular disease, right lower extremity, for the period August 5, 1985 to January 12, 1998, is denied. An extraschedular evaluation in excess of 50 percent for peripheral vascular disease, left lower extremity, for the period August 5, 1985 to January 12, 1998, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs