Citation Nr: 1318189 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 08-38 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to an initial compensable rating for erectile dysfunction. 5. Entitlement to a rating higher than 20 percent for type II diabetes with nephropathy. 6. Entitlement to a rating higher than 20 percent for right lower extremity diabetic neuropathy. 7. Entitlement to a rating higher than 20 percent for left lower extremity diabetic neuropathy. 8. Entitlement to an initial rating higher than 10 percent for right upper extremity neuropathy. 9. Entitlement to an initial rating higher than 10 percent for left upper extremity neuropathy. 10. Entitlement to a total disability rating for individual unemployablity due to service-connected disabilities (TDIU) prior to February 24, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to October 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2007 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran requested a hearing before the Board but withdrew that request in a November 2012 written statement. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of service connection for right ear hearing loss, a rating higher than 20 percent for type II diabetes with nephropathy, ratings higher than 20 percent each for right and left lower extremity diabetic neuropathy, initial ratings higher than 10 percent each for right and left upper extremity diabetic neuropathy, and a TDIU prior to February 24, 2011, 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. Neither sleep apnea nor COPD began during service or until many years after service, is or may be presumed to have been related to in-service herbicide exposure, or was caused or aggravated by the Veteran's service-connected type II diabetes. 2. The Veteran has erectile dysfunction but no deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have not been met. 38 U.S.C.A. §§ 1110, 1113, 1116(f), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2012). 2. The criteria for service connection for COPD have not been met. 38 U.S.C.A. §§ 1110, 1113, 1116(f), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2012). 3. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.350, 4.1, 4.3, 4.7, 4.31, 4.115b, Diagnostic Codes 7522, 7523 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). No disability at issue in this case is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, as reflected in his September 2008 claim, January 2010 substantive appeal, and a March 2010 statement, the Veteran asserts that COPD and sleep apnea were the result of herbicide exposure in Vietnam, or are secondary to his service-connected type II diabetes mellitus. Service treatment records reflect no findings or notations related to COPD or sleep apnea. At the time of his July 1970 examination for separation from service, the Veteran had a normal clinical evaluation of the lungs and chest and no COPD, sleep apnea, or other respiratory problems were noted. At that time, the Veteran reported that he did not have and had never had asthma, shortness of breath, pain or pressure in the chest, chronic cough, or frequent trouble sleeping, and no respiratory problems or problems with fatigue were noted, providing factual evidence against his own claims. The Veteran's service personnel records reflect that he served in the Republic of Vietnam from April 1968 to April 1969. VA treatment records reflect that, in June 2003, the Veteran was noted not to have had COPD. In October 2004, the Veteran complained of having fatigue for the last three months, with no dyspnea or chest pain. In April 2006 and June 2006, the Veteran complained of exertional dyspnea, and in November 2006 was started on Advair by a lung specialist. In May 2007, the Veteran was given a sleep study and was noted to have been very restless with numerous awakenings; it was noted that, due to numerous witnessed respiratory events, the Veteran may benefit from CPAP titration. The Veteran began using a CPAP for sleep apnea in June 2007. In November 2007, he was noted to have continued to complain of exertional dyspnea, and in June 2008, following pulmonary function testing, the impression was possible asthma. In September 2008 the Veteran was noted to have had moderate COPD, which was noted to have possibly been contributing to his dyspnea and cough, and he was placed on Atrovent and Albuterol. In November 2008, the Veteran was again noted to have had cough, shortness of breath, and moderate COPD; it was noted that he had stopped smoking 10 years before. The report of a February 2009 VA examination reflects that the Veteran gave a history of developing sleep apnea and having a sleep study about two years before, providing more factual evidence against his own claim as it clearly indicates a problem that began many years after service, and that his CPAP machine helped. The diagnosis was sleep apnea. In a March 2009 addendum, the February 2009 VA examining physician, after reviewing the February 2009 examination report, the Veteran's claims file, and the physician's notes, opined that the Veteran's sleep apnea was not causally related to or aggravated in any way by his diabetes mellitus. The examiner reasoned that the Veteran's sleep apnea and diabetes were both most likely associated with exogenous obesity, but that the diabetes mellitus in itself did not cause the sleep apnea. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's service connection claims must be denied. Neither COPD nor sleep apnea either began during service or until many years after service. Service treatment records reflect no findings or notations related to COPD, sleep apnea, or respiratory problems including at the time of his July 1970 examination for separation from service, and the Veteran did not report any such problems at any time during service. The record does not indicate that any either disorder was diagnosed, or that symptoms of either disorder were noticed, until approximately 35 years after the Veteran's period of service. Furthermore, the Veteran has not made any assertions to the contrary; rather, he has contended that COPD and sleep apnea were the result of herbicide exposure in Vietnam, or are secondary to his service-connected type II diabetes mellitus. As the Veteran had service in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicides. However, neither COPD nor sleep apnea are listed in 38 C.F.R. § 3.309(e) as disabilities presumptively connected to herbicide exposure. In this regard, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for respiratory disorders other than certain respiratory cancers. See 68 Fed. Reg. 27630-27641 (May 20, 2003). Thus, presumptive service connection for COPD or sleep apnea is not warranted pursuant to 38 C.F.R. § 3.309(e). Also, while service connection for a disability claimed as due to exposure to Agent Orange/herbicides may still be established by showing that a disorder resulting in disability was in fact causally linked to such exposure, the Veteran has not offered any competent and probative evidence showing any such causal link between his claimed disorders and Agent Orange exposure, and record does not otherwise indicate any connection between his COPD or sleep apnea and such exposure. In fact, his own statements indicate problems that began decades after service. The only evidence of any link between the Veteran's in-service Agent Orange exposure and his claimed disorders, diagnosed 35 years later, is the Veteran's bare assertions of such a link. A lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, establishing a causal medical connection between herbicide exposure and COPD and sleep apnea 35 years later extends beyond a cause-and-effect relationship immediately observable to a layperson. As such, the Veteran's contentions alone are not competent evidence to establish such a link. Furthermore, the weight of the evidence is against finding that either COPD or sleep apnea was caused or aggravated by the Veteran's service-connected type II diabetes. Regarding the Veteran's COPD, there is no evidence of record indicating any such link between such disability and his diabetes other than the his bare assertions, and the Veteran has offered no such evidence or any explanation of how his COPD and diabetes might be medically linked. Again, a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau, 492 F.3d 1372. However, again, establishing a causal medical connection between COPD and type II diabetes extends beyond a cause-and-effect relationship immediately observable to a layperson. As such, the Veteran's contentions alone are not competent evidence to establish such a link. Thus, the record contains no competent and probative evidence indicating any relationship between the Veteran's COPD and his diabetes. Regarding the Veteran's sleep apnea, the only competent and probative opinion regarding whether such sleep apnea is related to his service-connected diabetes is that of the VA examining physician in the March 2013 addendum, which was that the Veteran's sleep apnea was not causally related to or aggravated in any way by his diabetes mellitus, as both sleep apnea and diabetes were most likely associated with exogenous obesity, but that diabetes mellitus in itself did not cause the sleep apnea. The Board finds the opinion to be persuasive, as it was made by a physician with appropriate expertise and based on examination of the Veteran and review of the record. Moreover, significantly, there is no competent and probative evidence supporting the Veteran's claim for service connection for sleep apnea, and neither the Veteran nor his representative has identified any such evidence. Here, again, establishing a causal medical connection between sleep apnea and type II diabetes extends beyond a cause-and-effect relationship immediately observable to a layperson. As such, the Veteran's contention of any such relationship is not competent evidence to establish such a link. Moreover, even assuming that the Veteran is competent to observe that his sleep apnea was worsened by his diabetes, the probative value of such opinion would be outweighed by the VA examining physician's professional medical opinion. Accordingly, the Board finds that the claims for service connection for sleep apnea and COPD must be denied. 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 the claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In the May 2009 rating decision, the RO granted service connection for erectile dysfunction and assigned a noncompensable rating, effective August 8, 2008. In the same rating decision, the Veteran granted special monthly compensation (SMC) based on loss of use of a creative organ pursuant to 38 C.F.R. § 3.350, also effective August 8, 2008. The Veteran's erectile dysfunction is rated under 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7522. Under 38 C.F.R. § 4.115b, DC 7522, deformity of the penis with loss of erectile power warrants a 20 percent rating. A note to DC 7522 indicates that entitlement to SMC under 38 C.F.R. § 3.350 should be reviewed. Where the schedular criteria does not provide for a noncompensable rating, such a rating shall be assigned when the requirements for a compensable ratting not met. 38 C.F.R. § 4.31. Considering the pertinent evidence in light of the above, the Board finds that a compensable rating for the Veteran's erectile dysfunction is not warranted at any time since the August 8, 2008, date of service connection. While the record reflects erectile dysfunction, it reflects no deformity of the penis. On August 2008 VA examination erectile dysfunction was noted, and on physical examination it was noted that the Veteran had normal male genitalia with testes descended bilaterally, although he related decreased scrotal and penile sensation during examination. On February 2009 VA examination the Veteran was noted to have had normal male genitalia and no testicular atrophy. There is no indication elsewhere in the medical record of any penis deformity. Thus, the objective evidence provides no basis for award of the 20 percent rating under DC 7522. As reflected in his June 2009 notice of disagreement, the Veteran asserts that the percentage rating for his erectile dysfunction on the basis of loss of use of that organ. The Board acknowledges the note to DC 7522 regarding consideration of SMC under 38 C.F.R. § 3.350. As noted above, however, such SMC based on loss of use of a creative organ was granted in the May 2009 rating decision, effective the date of the award of service connection for erectile dysfunction. Furthermore, while the Veteran himself made no such assertion either in any of his multiple written statements regarding his erectile dysfunction since his June 2009 notice of disagreement with the May 2009 rating decision granting a noncompensable rating, or during any of his numerous instances of VA treatment since that time, in an August 2013 brief, the Veteran's representative asserted that the Veteran contended that his penis showed deformity, as it was not the shape it was prior to having erectile dysfunction. However, in light of the VA medical examiners' findings of normal genitalia since the Veteran's erectile dysfunction was noted in August 2008, and in light of the Veteran's failure to make this assertion in the years prior to April 2013, during which he has been pursuing his claim and being treated for erectile dysfunction, the Board finds this assertion of deformity of the penis, unsupported by any other evidence, to be of little, if any, probative value. The Board, in short, finds that the probative value of the VA examiners' findings of normal male genitalia outweighs that of the Veteran's representative's April 2013 assertions of deformity of the penis. The Board has also considered the applicability of other diagnostic codes for rating the disability on appeal, but finds that no other diagnostic code provides a basis for a higher rating. While a compensable rating is assignable for atrophy of both testes (see 38 C.F.R. § 4.115b, DC 7523), here, neither testis has been shown to be atrophied. The Veteran's service-connected erectile dysfunction also has not been shown to involve any factors that warrant evaluation under any other provisions of VA's rating schedule. In short, there is simply no legal basis for any higher rating for the Veteran's service-connected erectile dysfunction. Also, this case should not be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b). 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, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's 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). In this case, the record does not reflect that the average industrial impairment from the Veteran's disability would be in excess of that contemplated by the assigned rating. Again, from the date of service connection, the Veteran has received SMC based on loss of use of a creative organ, and his erectile dysfunction has otherwise shown no deformity of the penis or other manifestation of disability. Such disability is reasonably contemplated by the schedular criteria for a noncompensable rating with SMC under DC 7522, which contemplates disability of the nature and severity of disability producing loss of a creative organ but no deformity of the genitalia. The record does not reflect that the Veteran's erectile dysfunction has caused impairment in earning capacity above what would be average for such disability. Also, the record does not reflect, and the Veteran has not asserted that his disability has been productive of marked interference with employment, and there is no indication in the record of frequent hospitalizations related to such disability. In sum, the Board has determined that there are no unusual or exceptional factors in this case warranting the referral of the claim for extraschedular consideration. Accordingly, an initial compensable rating for erectile dysfunction is not warranted, and there is no basis for staged rating of the Veteran's disability pursuant to Fenderson. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 53-56 Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Regarding the Veteran's increased initial rating claim, the award of service connection for erectile dysfunction represented a substantiation of the Veteran's original claim, and thus the filing of a notice of disagreement with the initial rating did not trigger additional 38 U.S.C.A. § 5103(a) notice requirements. Therefore, any defect as to notice is not prejudicial. See Dingess/Hartman, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 134 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Regarding the Veteran's service connection claims, required notice was provided by letter dated in November 2008, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical treatment records, identified private treatment records, and written statements from the Veteran have been obtained. Also, the Veteran was provided VA examinations in connection with his claims for sleep apnea and erectile dysfunction in August 2008 and February 2009. These examinations and associated reports were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claims. The examination reports were based on examination of the Veteran by examiners with appropriate expertise who reviewed the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v Nicholson, 21 Vet. App. 303 (2007). While the Veteran has not been afforded a VA examination in connection with his current claim for COPD, as explained above, there is no evidence in this case, aside from the Veteran's bare assertions, indicating that COPD may be associated with service or another service-connected disability. Therefore, while the standard for providing a VA examination is low, even this low threshold has not been met for this claim, and remand for a VA examination is not warranted. See 38 C.F.R. § 3.159(c)(4); see also 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, as the only evidence that the Veteran's claimed disability is related to military service (by way of another service connected disability) is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for sleep apnea is denied. Service connection for COPD is denied. An initial compensable rating for erectile dysfunction is denied. REMAND Regarding the Veteran's claim for right ear hearing loss, VA audiological treatment records indicate that, in October 2008, the Veteran reported a sudden hearing loss in the right ear weeks before, and having a similar episode with noise exposure in Vietnam. In November 2008, the Veteran reported a history of sudden hearing loss in the right ear with onset approximately two months before, and that some of his hearing had returned, but that speech still sounded muffled to him; at that time he reported that he had had previous episodes of hearing loss in the right ear and a noise induced hearing loss while in service in Vietnam, and that his hearing had retuned following that episode. He was assessed as having a history of noise exposure. In December 2008 it was noted that a November 2008 audiological evaluation revealed severe rising to mild sensorineural hearing loss. Such audiological evaluation results are not of record. In a January 2009 statement, the Veteran asserted that while in Vietnam he was exposed to constant mortar, rocket, and artillery fire, and that on one occasion he was on top of a bunker when a mortar hit the side of the bunker and knocked him on to the ground, and that, as he was on the ground, another hit near his head. He stated that, as a result of this incident, he lost hearing in his ears for about two weeks and had roaring in his ears as it came back, and that he had had trouble with his ears ever since and sought treatment after he lost hearing in October 2008. The Veteran's service personnel records reflect service in Vietnam as an automobile mechanic during the Vietnam War from April 1968 to April 1969. Under these circumstances, the Veteran should be provided an audiological examination and opinion addressing whether he has right ear hearing loss for VA purposes, and, if so, whether such disability is related to his period of service. See 38 C.F.R. §§ 3.159(c)(4), 3.385 (2012); see also McLendon, 20 Vet. App. 79. Regarding the Veteran's claims for a rating higher than 20 percent for type II diabetes with nephropathy, ratings higher than 20 percent each for right and left lower extremity diabetic neuropathy, and initial ratings higher than 10 percent each for right and left upper extremity diabetic neuropathy, in a June 2012 statement, the Veteran asserted that he disagreed with his ratings because his disabilities had worsened. He stated that, at that time, he had begun to have to walk with a walker instead of a cane, per his doctors orders. He stated that the severity of his neuropathy had increased with more pain and numbness and had become so disabling that it was difficult to walk or sit for any length of time, and that his insulin prescription had been changed recently. He further asserted that his doctor had in May restricted his activities due to his diabetes, and that he could no longer exercise because of the pain and weakness from his neuropathy and his blood pressure drops due to his diabetes. He further stated that, due to his neuropathy, he could no longer lift his left leg to put his sock on. January 2012 VA treatment records reflect that in the past couple of months the Veteran's blood sugar levels had increased steadily compared to what they previously were, and that his neuropathy symptoms had recently worsened. March 2012 VA treatment records reflect that the Veteran complained of left thigh pain for the last three months that had gradually built up, and that the pain in the Veteran's thigh was very likely to be due to diabetic amyotrophy, a form of diabetic neuropathy that is very painful and associated with muscle atrophy. June 2012 VA treatment records reflect that the Veteran complained of lower extremity weakness, worsening two years prior, and that for the last six or seven years he had been using a cane but now was using a walker. He also reported bilateral leg pain from the lateral hip to the knee, beginning two to three years prior, that the pain had been increasing, that his legs gave out due to weakness, that he had been diagnosed with peripheral neuropathy, and that he was unable to lift his left leg to put on his shoe. When a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination or other evidence of worsening. VAOPGCPREC 11-95 (1995). The most recent VA examination of the Veteran's type II diabetes with nephropathy and diabetic neuropathy is dated in February 2009, over four years ago. In light of the Veteran's assertions of worsening symptomatology since then, and the VA treatment records supporting his assertions, the Veteran should be afforded a new VA examination to determine the current severity of his type II diabetes with nephropathy and diabetic neuropathy. Also, the claims file reflects that the Veteran had been receiving treatment from the Fayetteville VA Medical Center (VAMC). Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The most recent VA treatment records in the claims file are dated in June 2012. Accordingly, on remand, the RO or AMC should obtain any pertinent records from the VAMC in Fayetteville dated from June 2012 to the present. Finally, the resolution of the Veteran's claims might be determinative of his claim for a TDIU prior to February 24, 2011. The issues are therefore inextricably intertwined, and a decision at this time by the Board with respect to the TDIU claim would be premature. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records related to the Veteran's type II diabetes with nephropathy and diabetic neuropathy from the Fayetteville VAMC, dated from June 2012 to the present. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA audiological examination with an appropriate examiner to determine the etiology of any right ear hearing loss (if any). Following a review of the claims file, to include service and post-service medical records, and the examination results, the examiner is requested to determine whether the Veteran has a right ear hearing loss disability. If such disability is diagnosed, the examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent probability or more) that any such disability is related to service, to specifically include noise exposure from the Veteran's service in Vietnam from April 1968 to April 1969. A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of his type II diabetes with nephropathy and diabetic neuropathy. The claims folder should be made available to the examiner in conjunction with the examination. Any medically indicated special tests should be accomplished. The examiner should report the extent of the Veteran's disabilities in accordance with VA rating criteria. 4. After completing the above development, and any other development deemed necessary, readjudicate the issues remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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