Citation Nr: 1320557 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-48 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for obesity. 2. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disabilities. 3. Entitlement to service connection for diabetes mellitus, to include as due to service-connected disabilities. 4. Entitlement to service connection for hypertension, to include as due to service-connected disabilities. 5. Entitlement to service connection for lumbar spine disability, to include as due to service-connected disabilities. 6. Entitlement to service connection for right knee disability, to include as due to service-connected disabilities. 7. Entitlement to service connection for arthritis of the big toes, to include as due to service-connected disabilities. 8. Entitlement to an increased rating for complex regional pain syndrome, left lower extremity, due to second and third degree burns, currently rated 10 percent disabling. 9. Entitlement to an increased rating for complex regional pain syndrome, right lower extremity, due to second and third degree burns, currently rated 10 percent disabling. 10. Entitlement to an increased rating for second and third degree burn scars, left foreleg extensor aspect and dorsum of ankle and foot, currently rated 20 percent disabling. 11. Entitlement to an increased rating for second and third degree burn scars, right foreleg extensor aspect and dorsum of ankle and foot, currently rated 20 percent disabling. 12. Entitlement to an increased rating for depression with insomnia and alcoholism, currently rated 30 percent disabling. 13. Entitlement to special monthly compensation (SMC) on the basis of being housebound or in the need of aid and attendance of another person. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from November 1983 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2006 rating decision, the RO denied entitlement to service connection for lumbar spine disability, right knee disability, hypertension, and arthritis of the big toes. A notice of disagreement was filed in May 2006, a statement of the case was issued in June 2006, and a substantive appeal was received in June 2006. In a May 2009 rating decision, the RO denied entitlement to service connection for obesity, diabetes mellitus, and erectile dysfunction; denied increased ratings for complex regional pain syndrome, left lower extremity, due to second and third degree burns, complex regional pain syndrome, right lower extremity, due to second and third degree burns, second and third degree burn scars, left foreleg extensor aspect and dorsum of ankle and foot, second and third degree burn scars, right foreleg extensor aspect and dorsum of ankle and foot, and, depression with insomnia and alcoholism. The RO also denied entitlement to SMC. The issues of entitlement to service connection for lumbar spine disability, right knee disability, hypertension, arthritis of the big toes, diabetes mellitus, and erectile dysfunction; entitlement to increased ratings for complex regional pain syndrome, left lower extremity, due to second and third degree burns, complex regional pain syndrome, right lower extremity, due to second and third degree burns, second and third degree burn scars, left foreleg extensor aspect and dorsum of ankle and foot, second and third degree burn scars, right foreleg extensor aspect and dorsum of ankle and foot, and, depression with insomnia and alcoholism; and, entitlement to SMC 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. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT Obesity is not a disability for which service connection can be awarded. CONCLUSION OF LAW Service connection for obesity is not warranted. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 4.1 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. With regard to the claimed obesity disability, proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a notice letter in April 2008. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date pertaining to his service connection claim. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of relevant service and post-service treatment records and providing an examination or medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA is obliged to provide an examination in a service connection claim when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court interpreted the provisions of 38 U.S.C.A. § 5103A(d)(2) as requiring an examination in service connection claims when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In this case, the RO did not provide a VA examination or medical opinion with regard to the obesity claim. As will be discussed below, there is no competent evidence of a disability for VA purposes, thus a VA examination is not necessary. 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 evidence of record contains copies of service treatment records and post-service private and VA treatment records. The Board acknowledges that there are possible outstanding records from the Social Security Administration (SSA). The Board acknowledges that normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the appellant's argument in Golz that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "(t)here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. While the SSA records are being requested with regard to the remaining issues in appellate status, the Board concludes that a decision may proceed on the obesity issue without further development. This is so because as will be discussed below, the Veteran's claim is being denied as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law). Thus, the Board finds it is unnecessary to obtain the Veteran's SSA records prior to adjudicating the Veteran's obesity claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim of service connection for obesity. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Criteria & Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (2012). The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established. This baseline is to be established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The rating activity is to determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Id. To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection is in effect for multiple disabilities including: complex regional pain syndrome, left lower extremity, due to second and third degree burns, complex regional pain syndrome, right lower extremity, due to second and third degree burns, second and third degree burn scars, left foreleg extensor aspect and dorsum of ankle and foot, second and third degree burn scars, right foreleg extensor aspect and dorsum of ankle and foot, and, a modd disorder previously characterized as depression with insomnia and alcoholism. The Veteran asserts that he does not exercise due to his service-connected disabilities, resulting in his obesity. VA outpatient treatment records on file reflect "active problems" which include obesity. Despite the above, a grant of service connection is not warranted here. Indeed, obesity is not a condition for which service connection can be granted. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities). VA's rating schedule does not contemplate a separate disability rating for obesity and there exists no statutory or legal guidance to allow for such a consideration. Under applicable VA regulations, the term "disability" refers to the average impairment in earning capacity resulting from diseases or injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439, 448 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Moreover, a disability manifested by chronic obesity is not shown by the evidence of record. In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran is not shown to have a current disability, the preponderance of the evidence is against his claim. Accordingly, service connection for obesity is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). ORDER Entitlement to service connection for obesity is denied. REMAND In his June 2006 substantive appeal, the Veteran requested a Board hearing at the Atlanta RO. Thus, a remand is necessary to schedule a hearing before the Board. At such hearing, he may present testimony on all 13 issues currently in appellate status. Following the hearing, the case shall be returned to the Board- any further necessary development will be considered at that time. Accordingly, the case is REMANDED for the following actions: The RO should schedule the Veteran for a Board hearing at the Atlanta RO. The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs