Citation Nr: 1319533 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 08-17 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a schedular compensable rating for erectile dysfunction. 2. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability due to VA medical treatment in February 2001. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In his substantive appeal, received in May 2008, the Veteran requested a hearing before the Board. He was duly scheduled to testify at a November 2012 Board hearings but without explanation did not appear. His request for a hearing before the Board is thus deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. The Veteran's erectile dysfunction, which is associated with his service-connected diabetes mellitus, is currently compensated by special monthly compensation for loss of use of a creative organ; he is not shown to have penile deformity. 2. The Veteran had cryogenic excision of an actinic keratosis that was performed by VA in February 2001; he does not have additional disability that was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in providing such treatment or by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for a schedular compensable rating for erectile dysfunction are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.119, Diagnostic Code 7913 (2012). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability due to VA medical treatment in February 2001 are not met. 38 U.S.C.A. §§ 1151, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claims on appeal, 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 VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Veteran in this case was notified of the elements required to establish entitlement to compensation under 38 U.S.C.A. § 1151 by a letter in September 2006, and he was notified of the elements required to established increased rating for erectile dysfunction by a letter in January 2007. He had ample opportunity to respond to these letters prior to issuance of the November 2007 rating decision on appeal. Further, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO also provided assistance to the Veteran 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. The Veteran's service treatment records are associated with the claims file, as are post-service treatment records from those VA and private medical providers the Veteran has identified as having records potentially relevant to adjudication of the issues on appeal. The Veteran has reported he draws Social Security Disability (SSD) based on injuries incurred in an automobile accident in the 1980s. Where there is actual notice to VA that the appellant is receiving disability benefits from the Social Security Administration (SSA), VA generally has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon. Baker v. West, 11 Vet. App. 163 (1998); Hayes v. Brown, 9 Vet. App. 67 (1996). However, VA's duty to assist applies only to relevant SSA records; in light of this, the Federal Circuit remarked that the legal standard for relevance requires VA to examine the information it has related to medical records, and, if there exists a reasonable possibility that the records could help the veteran substantiate the claim, to obtain those records. Golz v. Shinseki, No. 2009-7039 (Fed. Cir. Jan. 4, 2010) (finding VA was not obligated to obtain SSA records when the SSA grant was for orthopedic disability and the VA claim under review was for a psychiatric disorder). The Board finds that an SSD file related to traumatic injuries received in the 1980s is unlikely to have any evidence relevant to the two issues before the Board. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board has considered whether quality assurance records from the Veterans Health Administration (VJA) may be available that are relevant to the claim for compensation under 38 U.S.C.A. § 1151. See VAOPGCPREC 1-2011(April 19, 2011) (holding that the duty to assist requires the AOJ or the Board to request quality assurance records from VHA and, if VHA denies access, to appeal such denial to the VA Office of General Counsel); see also Hood v. Shinseki, 23 Vet App (2009). However, in this case, the VA medical procedure in February 2001 that is the subject of this claim was a minor outpatient procedure without complication that is not likely to have warranted a quality assurance record at the time. In any case, it is VA's policy to destroy quality assurance records after three years unless needed for research or legal purposes. See Norvell v. Peake, 22 Vet. App. 194, 200 (2008) (citing VHA Records Control Schedule 10-1, at XXXIII-2 (Aug. 1, 2009)); see also VHA Records Control Schedule 10-1 (Mar. 1, 2011). The Board accordingly finds that remand for quality assurance records is not called for in this case. The Veteran has been afforded appropriate VA medical examinations in conjunction with the issues on appeal. As noted in the Introduction, he was scheduled to testify before the Board but he failed without explanation to appear. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Evaluation of Erectile Dysfunction Legal Principles Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When determining the appropriate disability evaluation to assign, VA's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Erectile dysfunction is compensated as a disorder associated with diabetes mellitus, which is rated under the provisions of 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Under this DC, compensable complications are evaluated separately unless they are part of the criteria to support a 100 percent evaluation; noncompensable evaluations are considered part of the diabetic process and are incorporated into the overall rating criteria of DC 7913. Genitourinary dysfunctions are rated under the criteria of 38 C.F.R. § 4.115b, which provides that when evaluation any claim involving loss of use of one or more creative organs (such as erectile dysfunction), refer to § 3.350 to determine whether the veteran may be entitled to special monthly compensation (SMC). Otherwise, the only provision for compensation is under DC 7522, which provides for a 20 percent rating for deformity of the penis with loss of erectile power. 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. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In any claim for higher ratings, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability hererein decided. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability. A rating decision in September 2003 granted service connection for diabetes mellitus. The same rating decision granted service connection for erectile dysfunction and assigned an initial rating of 0 percent, but granted SMC for loss of use of a creative organ. A rating decision in January 2004 denied compensable evaluation for erectile dysfunction but continued SMC. As noted above, the Veteran has received SMC for loss of use of a creative organ throughout the period under review. To show entitlement to compensable schedular evaluation under 38 C.F.R. § 4.115b, DC 7522, there must be deformity of the penis as well as loss of erectile power. A VA history and physical (H&P) examination dated in April 2006 shows the Veteran to be currently taking medication for erectile dysfunction. Genitourinary examination is silent in regard to any deformity of the penis. The Veteran presented to the VA primary care clinic (PCC) in October 2006 and stated he was seeking service connection for erectile dysfunction as secondary to the service-connected diabetes mellitus (note that the Veteran was already drawing SMC for loss of use of a creative organ). He stated he was currently taking Levitra but it did not work very well. The clinician affirmed there is a likely correlation between the Veteran's diabetes and his impotence problem In his present claim, received in December 2006, the Veteran asserted having no erectile power and also having a penile deformity. His wife submitted a statement in support, asserting that the Veteran had no erectile power whatsoever and that his penis had become deformed (she did not state the nature of the deformity). The Veteran had a VA genitourinary examination in February 2007 in which he complained of erectile dysfunction since approximately 2000 and becoming progressively worse since then. The Veteran denied current medications, asserting that he had tried Viagra but it had stopped working and also gave him a headache. Physical examination showed a normal penis. VA H&P examinations dated in April 2007 and August 2008 showed the Veteran to be currently taking medication for erectile dysfunction. Genitourinary examination was silent in regard to any deformity of the penis. The Veteran had a series of VA examinations for various physical systems in April 2010 and again in October 2010. There is no indication in these examination reports of a current penile deformity. Review of the file shows the Veteran has service-connected erectile dysfunction, for which he has a noncompensable schedular evaluation but receives compensation in the form of SMC. A schedular compensable rating may be assigned if there is a deformity of the penis (which in this case would necessarily have to be related to a service-connected disability, and not be a deformity due to a nonservice-connected coincidental cause) but in this case there is no medical indication of any deformity whatsoever. The Veteran and his wife have both asserted that the Veteran has an unspecified "deformity" of the penis. A layperson is competent to provide eyewitness testimony in regard to observable symptoms. Layno, 6 Vet. App.465, 469. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, id. (distinguishing between 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"). 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. Caluza, 7 Vet. App. 498. 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. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds at this point that the lay evidence of record does not credibly show a deformity of the penis for which compensation can be granted. Careful review of the Veteran's extensive medical record shows no indication of any deformity, much less that he has a deformity that is somehow related to a service-connected disability. As the Veteran and his wife are both interested parties to increased rating for the disability, their reports are deemed to be less credible than the medical treatment records in which no deformity is recorded. In sum, the Board has found the disability picture more closely approximates the criteria for the currently-assigned noncompensable rating, with SMC. Because the criteria for higher ratings were not shown during any distinct period, a "staged rating" is not warranted. Hart, 21 Vet. App. 505. The Board also has considered whether referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1). Here, the rating criteria for the underlying diabetes mellitus reasonably describe the Veteran's disability levels and symptomatology, and provide higher ratings for disability levels more severe than those shown by the evidence, and his current compensation via SMC for erectile dysfunction is, effectually, a form of extraschedular rating. Thus, his disability picture is contemplated by the Rating Schedule, and ratings under that schedule are therefore adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. A request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Roberson v. Principi, 251 F. 3d 1378, 1384 (Fed. Cir. 2001) (holding that once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and additionally submits evidence of unemployability, the 'identify the benefit sought' requirement of 38 C.F.R. § 3.155(a) is met and the VA must consider TDIU). According to VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. See VAOGCPREC 6-96. The Veteran in this case does not assert, and the evidence of record does not show, that the erectile dysfunction on appeal renders him unemployable. The Board accordingly finds that a claim for TDIU is not raised by the issue on appeal. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Entitlement to Compensation under 38 U.S.C.A. § 1151 Legal Principles A veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the hospital care, medical or surgical treatment or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuation or natural progress. 38 C.F.R. § 3.361(c)(2). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Evidence and Analysis The file contains a VA dermatology note in which the date is partially illegible but appears to be in February 2001. The note reflects that the Veteran presented to the dermatology clinic with a small ulceration on the tip of his nose. The ulceration was first noticed the previous June. Since then the lesion had intermittently closed and then re-opened. The clinical impression was probable actinic keratosis. The planned treatment was to apply liquid nitrogen to the erythematous area. The file contains an undated treatment note by Dr. Lewis M. Dubroff stating the Veteran had apparently undergone cryogenic removal of a lesion on the left tip of his nose by a VA dermatologist in 2000. Dr. Dubroff stated that such treatment led to a complicated problem, in that a basal cell carcinoma should have been biopsied and excised; the treating of a lesion cryosurgically had led to partial removal, with hiding of a deeper component under the skin that made excision quite difficult and also made recurrence more likely. Clinically, the area was clear. Dr. Dubroff's impression was status post excision of basal cell carcinoma of the left tip of the nose, with considerable probability of recurrence. Dr. Dubroff explained the treatment options, and the Veteran opted to watch the area. Dr. Dubroff urged the Veteran to use sun screen, avoid the sun and perform self-examination monthly. The Veteran presented to the VA ear/nose/throat (ENT) clinic in November 2001 for treatment of a laceration of the lip, incurred in a fall. The clinician incidentally noted the Veteran had a cancerous-type lesion removed from his nose four months before (i.e., approximately in July 2001) by Dr. Dubroff. The ENT treatment note is silent in regard to any current problems associated with the tip of the nose. Subsequent VA history and physical (H&P) examinations in March 2004, March 2005 and April 2006 are silent in regard to any abnormalities or complaints relating to the tip of the nose, to include recurrence of cancerous lesion. In his claim, received in August 2006, the Veteran asserted that malpractice on the part of VA physicians caused his nose to itch constantly, to be extremely sensitive and to bleed when blown. The Veteran presented to the VA PCC in March 2007 with dermatological complaints relating to a rash on his torso. During the course of the interview he reported being followed up by his private dermatologist, Dr. Dubroff, for history of a melanoma on the nose in 2005; the VA physician stated this was a surprise and had not been mentioned to him before. The clinical examination performed that day is silent in regard to any dermatological complaint, or observed abnormality, of the nose. The Veteran presented to the VA emergency room in April 2007 again complaining of a rash on the torso; there was no indication of any dermatological complaint regarding the nose. A VA H&P examination dated in April 2007 noted history of excision of a melanoma by Dr. Dubroff in 2005. The examination report is silent in regard to any current residuals. The Veteran had a VA examination in April 2007 for the specific purpose of obtaining a medical opinion regarding whether the Veteran had any residuals of a skin condition due to failure of VA to properly treat. The examiner reviewed the claims file and noted that in February 2001 a VA provided had performed a cryogenic removal of what appeared to be an actinic keratosis; in 2005 the Veteran consulted Dr. Dubroff, who expressed doubts about the treatment that had been provided by VA in 2001 (as noted above). At the time of the current examination the Veteran had no complaints of redness or outbreak at the tip of the nose. The Veteran complained of occasional nosebleed in the right nostril and occasional sensitivity along each side of the nose. He denied using any creams or ointments as treatment. Physical examination showed a well-healed area not requiring any current treatment. The Veteran stated he was being followed-up with Dr. Dubroff every six months. Physical examination showed a small indented area on the tip of the nose, approximately 0.25 cm in diameter. The examiner placed photos of the Veteran's face in the claims file; these photos do not demonstrate any apparent disfigurement. The examiner diagnosed status post excision from the tip of the nose, with residual indentation. The examiner stated there are no records showing the Veteran had a basal cell carcinoma in 2001, the time of the VA treatment in question, and there is nothing to show the Veteran went to VA for follow-up between 2001 and 2005. There is no pathology report by Dr. Dubroff in 2005 and not enough medical information to show that anyone should be held responsible for the basal cell carcinoma; the surgery by Dr. Dubroff in 2005 cannot even be determined to be a recurrence. There is no information stating the Veteran had skin cancer in 2001, and it is not reasonable to assume the Veteran had basal cell carcinoma in 2001 or 2005. There is no evidence of record to show the Veteran ever had skin cancer and more information would have to be provided to furnish an opinion in that regard. A VA H&P examination dated in August 2008 noted history of excision of a melanoma by Dr. Dubroff in 2005 but is silent in regard to any current residuals. The Veteran had a series of VA examinations for various physical systems in April 2010 and again in October 2010, none of which record a current residuals of a previous excision in the area of the nose. Review of the file shows the Veteran underwent a VA cryogenic procedure in February 2001. The Veteran's theory of causation appears to assert that VA misdiagnosed a current carcinoma (basal cell carcinoma or melanoma) as actinic keratosis in February 2001, which complicated the subsequent excision by Dr. Dubroff; thus, any residuals of the excision by Dr. Dubroff should be attributed to the earlier VA procedure. As noted above, 38 C.F.R. § 3.361(c)(2) provides that failure by VA to timely diagnose and properly treat a disease is a potential basis for recovery under 38 U.S.C.A. § 1151. The undated treatment note by Dr. Dubroff implies an opinion that the lesion that he was excising from the Veteran's nose had been present during the earlier treatment by VA, but the VA examiner in April 2007, who had the opportunity to review the entire medical record, specifically found there is no indication the Veteran in fact had skin cancer when he was treated by VA in February 2001. To the degree that the records from Dr. Dubroff and the April 2007 VA examiner represent conflicting medical opinions, it is the Board's duty to assess the credibility and probative value of evidence; and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no indication in this case that Dr. Dubroff had access to the VA treatment record in question, whereas the VA examiner had access to both the VA treatment record and to the treatment record by Dr. Dubroff. The VA examiner also had access to the claims file, which contains the Veteran's treatment history since February 2001 and shows no indication of recurrence of cancer (that being the potential complication cited by Dr. Dubroff). Accordingly, the opinion of the VA examiner is the more probative under the criteria of Nieves-Rodriguez. The Board observes that the symptoms of which the Veteran complains (slight indentation, sensitivity and occasional bleeding) are medically characterized as status post excision; they are thus residual to the excision performed by Dr. Dubroff, not to the cryogenic procedure performed by VA. The Veteran does not contend, and the evidence of record does not show, that these symptoms were present between the VA procedure in February 2001 and the later treatment by Dr. Dubroff. There is accordingly no basis on the Board can find these symptoms, which appear to be minor and non-disabling, to be directly attributable to the VA procedure rather than to the intervening procedure of Dr. Dubroff. The question of whether VA failed to properly diagnose a current symptom, as the Veteran contends, is a complicated medical question that is not within the capability of a layperson. Kahana, 24 Vet. App. 428. Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For the reasons cited above, the Board has found the most probative medical opinion of record shows the VA clinician in February 2001 did not misdiagnose the Veteran's current symptoms. Based on the evidence and analysis above the Board finds the Veteran does not have an additional disability that is proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in providing such treatment or by an event not reasonably foreseeable. Accordingly, the criteria for compensation under 38 U.S.C.A. § 1151 are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Entitlement to a schedular compensable rating for erectile dysfunction is denied. Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for additional disability due to VA medical treatment in February 2001 is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs