Citation Nr: 1325262 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-46 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, as secondary to the service-connected diabetes mellitus. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU rating), prior to March 11, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from March 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for erectile dysfunction and denied entitlement to a TDIU rating. By April 2013 rating decision, the RO granted a 100 percent rating for lung cancer, effective from March 11, 2013. In Herlehy v. Principi, 15 Vet. App. 33 (2001), the Court held that the grant of a schedular 100 percent disability evaluation moots the issue of any entitlement to TDIU after the effective date of that rating. Herlehy, 15 Vet. App. at 35 (finding request for TDIU post-July 1989 moot where 100 percent schedular rating was awarded in July 1989); see also Locklear v. Shinseki, 24 Vet. App. 311, 314 (2011) (noting that because the Veteran was awarded a 100% schedular disability rating effective from May 20, 1990, entitlement to TDIU since that date effectively was mooted). Thus, in the current appeal, the issue is as stated on the first page of the decision - entitlement to TDIU since the March 11, 2013, effective date of the Veteran's 100 percent rating for his only service-connected disability is moot. Further, to date, it does not appear that the Veteran has disagreed with any aspect of the April 2013 RO rating decision, to include the effective date assigned for his 100 percent schedular evaluation. The issue of entitlement to service connection for erectile dysfunction is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Prior to March 11, 2013, the preponderance of the evidence of record was against a finding that the Veteran's service-connected disabilities are of such a nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW Prior to March 11, 2013, the criteria for entitlement to a TDIU rating were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16(a),(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial 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). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that any error in VCAA notice should be presumed prejudicial, and that VA bears the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 ( Fed. Cir. 2007). However, the U.S. Supreme Court reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2). The Supreme Court held that - except for cases in which VA failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error rests with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2008 that fully addressed the notice elements and was sent prior to the initial RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board also notes that in the May 2008 letter, the Veteran was advised of how disability ratings and effective dates are assigned. See Dingess v. Nicholson, supra. He has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. See Sanders v. Nicholson, supra. The Board concludes that all required notice has been given to the Veteran. The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims. The RO has obtained all identified and available service and post-service treatment records for the Veteran. In addition, the Veteran underwent a VA examination in September 2008 and a VA DBQ (disability benefits questionnaire) examination January 2012, which addressed the issue of whether the Veteran should be entitled to a TDIU rating. The Board notes that each examination included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. These VA examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. 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, supra. The Board concludes that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claims under the VCAA. No useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Entitlement to TDIU Rating, prior to March 11, 2013 The Veteran has essentially contended that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. As explained in the introduction, the issue of entitlement to a TDIU rating, effective from March 11, 2013, is now moot due to the recent grant of a 100 percent rating for the Veteran's lung cancer. Thus, herein, the Board will only consider the Veteran's entitlement to a TDIU rating, prior to March 11, 2013. Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a). Total disability may or may not be permanent. Id. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases expect where specifically prescribed by the schedule. Id. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 40 percent disabling in combination, the following will be considered one disability: disabilities of one or both lower extremities, including the bilateral factor, or disabilities resulting from common etiology or a single accident. Id. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In exceptional circumstances, where a veteran does not meet the above percentage requirements, a total rating may be assigned on a showing that the individual is unable to obtain or retain substantially gainful employment. Id. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists for TDIU, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by any non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The record reflects that prior to March 13, 2013, service connection was in effect for : coronary artery disease status post stent, rated as 30 percent disabling; peripheral neuropathy of the right upper arm, associated with diabetes mellitus, rated as 30 percent disabling; peripheral neuropathy of the left upper extremity, associated with diabetes mellitus, rated as 20 percent disabling; diabetes mellitus, rated as 20 percent disabling; peripheral neuritis of the right lower extremity, associated with diabetes mellitus, rated as 20 percent disabling; and peripheral neuritis of the left lower extremity, associated with diabetes mellitus, rated as 20 percent disabling. These service-connected disabilities yielded a combined 80 percent disability rating, effective from August 10, 2005. See 38 C.F.R. § 4.25. Thus, prior to March 13, 2013, the Veteran did meet the minimum schedular standards for a TDIU rating set forth in 38 C.F.R. § 4.16(a). The Veteran essentially maintains that his service-connected disabilities, coronary artery disease, diabetes mellitus, and peripheral neuropathy, render him totally unemployable. The Board acknowledges the Veteran's assertions, as well as his significant degree of functional impairment due to his service-connected disabilities. However, the Board also notes that the evidence in this type of claim must show that the Veteran is unable to pursue a substantially gainful occupation due solely to his service-connected disabilities. The mere fact that a veteran is unemployed or has difficulty obtaining a job in the available employment marketplace is not enough. As the Court has emphasized, a high disability rating in and of itself is recognition that the impairment makes it difficult to obtain or retain employment, but the ultimate question is whether the veteran is individually capable of performing the physical and mental acts required by employment (without consideration of his advanced age or the effects of non-service-connected disabilities), rather than whether he is having difficulty finding employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Reviewing the record on appeal, that Board notes that the Veteran was granted disability benefits by the Social Security Administration (SSA), effective in March 2001, primarily due to coronary heart disease and chronic obstructive pulmonary disease (COPD). In the SSA administrative law judge's decision, it was noted that the Veteran had the following severe impairments: coronary heart disease with recurrent angina, COPD, heavy smoker, and poorly controlled hypertension. On a VA examination in October 2005, the Veteran reported he quit working in September 2002 after he had heart problems. On subsequent VA treatment records also dated in October 2005, it was noted that the Veteran reported he was retired and that he had had diabetes for two years. In his April 2008 formal claim for a TDIU rating (VA Form 21-8940), the Veteran indicated that his diabetes mellitus was the service-connected disability that prevented him from securing or following any substantially gainful occupation. He indicated that his diabetes mellitus affected full time employment in August 2002, at which time he became too disabled to work due to diabetes mellitus. He indicated that his law job was as a self employed carpenter, from 1968 to 2001. He indicated he had completed high school, and had additional training as an electrician and HVAC training in 1970. On VA examination in September 2008, it was noted that the Veteran was sedentary and could not walk far because of poor balance due to peripheral neuropathy in the feet, and it was also noted that he got out of breath easily and his knees were stiff and painful. The examiner opined that it was unlikely that the Veteran could perform activities as a carpenter because of his breathing difficulties, painful stiff knees, blindness in one eye, and medication regime. On a VA examination for diabetes mellitus in July 2010, it was noted that the Veteran had a sedentary lifestyle, was unable to walk or exercise, and was wheelchair bound. It was further noted that he did not have restrictions of activity on account of diabetes, but rather he had significant restriction of his activities due to his multiple medical conditions and not necessarily because of his problems with his blood sugar. It was noted that the Veteran was retired, that he had quit work as a carpenter in 2002, and that his activities were limited by dyspnea on exertion. Received in August 2011, was another formal claim for a TDIU rating, in which the Veteran indicated that all of his service-connected conditions prevented him from securing or following any substantially gainful occupation. He indicated that his disabilities affected full time employment in 2002. In a statement (VA Form 21-4138) received in November 2011, the Veteran claimed he was unemployable due to his service-connected coronary artery disease, status post stent, in addition to his service-connected diabetes and related peripheral neuropathy of the bilateral upper and lower extremities. On the VA DBQ examination in January 2012, the examiner indicated that the Veteran's diabetes mellitus was stable, and opined that his diabetes mellitus did not render him unable to secure and maintain substantially gainful employment in a sedentary work position. The examiner opined that the Veteran's peripheral neuropathy of the upper and lower extremities did not inhibit him from obtaining and maintaining a sedentary position. A review of the evidentiary record in this case shows that the Veteran has maintained that he is unable to work due to his service-connected diabetes mellitus, peripheral neuropathy of the upper and lower extremities, and coronary artery disease. He has alternately contended that he quit or retired from his last full time job as a carpenter, in 2002, due heart problems and/or diabetes mellitus and/or peripheral neuropathy of the extremities. However, neither the VA treatment records or the VA examination reports ascribe the Veteran's inability to work due solely to any service-connected disability, to include the service-connected diabetes mellitus, coronary artery disease, and peripheral neuropathy of the extremities. While it is apparent that the Veteran is unemployable, and has been receiving disability benefits from the SSA since 2001, the record reflects that the Veteran's unemployability has been linked to a combination of service-connected and non-service-connected disabilities - to include COPD, coronary artery disease, degenerative joint disease in the knees, blindness in one eye, and hypertension. However, the VA examiner in January 2012, opined that neither the Veteran's diabetes mellitus nor his peripheral neuropathy rendered him unable to secure or maintain substantially gainful employment in a sedentary work position. The Board acknowledges that prior to March 11, 2013, the Veteran's service-connected coronary artery disease was productive of a great degree of disability, as indicated by the 30 percent rating. Moreover, while he undoubtedly suffered impairment due to his multiple service-connected disabilities, for which a combined 80 percent rating was assigned, the competent evidence of record prior to March 11, 2013, preponderates against a finding that he is unemployable solely due to his service-connected disabilities. In conclusion, while the Board does not wish to minimize the nature and extent of the Veteran's overall disability picture due to his service-connected disabilities prior to March 11, 2013, the evidence of record simply does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Further, to the extent the Veteran was limited by his service-connected disabilities, prior to March 11, 2013, any such limitation was contemplated in, and was being adequately compensated by, the disability ratings assigned for each service-connected disability - to specifically include the 30 percent disability rating assigned for coronary artery disease. Accordingly, for reasons set forth above, a TDIU rating is not warranted prior to March 11, 2013. 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU rating, prior to March 11, 2013, is denied. REMAND The Veteran essentially contends that his erectile dysfunction is related to his service-connected diabetes mellitus. Service connection may be established on a secondary basis for a disability that is 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. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, while the VA examiner in 2013 essentially concluded that the Veteran did not have a diagnosis of ED, and the record does not otherwise show a diagnosis of ED, the Board finds that the Veteran is competent to report on such observable symptomatology as ED. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Thus, for purposes of this matter, the Veteran is considered to currently have a disability of ED. With regard to the claim for secondary service connection, the Board notes that what is missing in this case is competent medical evidence linking the Veteran's ED to diabetes mellitus. On the VA DBQ examination in January 2012, the examiner noted that the Veteran reported a history of ED with symptoms of inability to obtain an erection. In the portion of the DBQ report that allows for "yes" or "no" answers only, the examiner responded "yes" to the Veteran having ED, and listed the etiology of ED as diabetes mellitus. In the remarks section of the VA DBQ report, the examiner noted that the Veteran was claiming that his ED was proximately due to or the result of his service-connected diabetes mellitus, but also noted that the Veteran did not currently have a diagnosis of ED nor did service treatment records or VHA progress notes show a workup or examination of for this condition, nor were medications prescribed to treat the condition. Thus, the VA examiner in January 2012 rendered an internally inconsistent opinion by finding on the one hand that the Veteran did not have ED, but then also finding that he had ED related to DM. Because of the inconsistencies in the January 2012 VA examination, the RO sought an addendum opinion to address the conflicting medical evidence. In March 2012, a VA DBQ addendum opinion was issued in which the examiner indicated that the Veteran reported a history of ED, stating he had not been able to obtain or maintain an erection sufficient for penetration/ejaculation, and that this condition was secondary to diabetes mellitus. The examiner noted that the conflicting medical evidence stemmed from the fact that there was nothing in the Veteran's medical history to substantiate a complaint of, evaluation, workup, treatment, or diagnosis of the condition of ED. The examiner also noted that the Veteran had hypertension, tobacco use disorder, ischemic heart disease, and congestive heart failure which can also cause ED, if the Veteran had ED. The examiner noted that the Veteran's report of ED secondary to diabetes mellitus, without workup or clinical evaluation does not substantiate diagnosis or etiology for the condition. The examiner also noted that to provide an opinion without this information would be mere speculation. The Board notes that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). After reviewing the VA examination reports from 2012, the Board concludes that the opinions rendered are inadequate and another is warranted. The Board acknowledges that the VA examiners both specifically addressed whether the Veteran's erectile dysfunction was related to or caused by diabetes mellitus, but did not specifically address whether his erectile dysfunction was aggravated or worsened by his diabetes mellitus. A claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, supra. Thus, based on the foregoing, the Board concludes that a medical opinion, on the question of whether the Veteran's erectile dysfunction is as likely as not aggravated by his service-connected diabetes mellitus, is needed. Barr v. Nicholson, supra. Accordingly, the case is REMANDED for the following action: 1. Arrange for the VA examiner who provided the March 2012 VA DBQ report and opinion (regarding erectile dysfunction) to review the Veteran's claims folder, and specifically note that such review has been accomplished. The examiner should be advised that to the Veteran is competent to report his symptoms and history regarding ED, and such reports must be specifically acknowledged and considered by the examiner in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, and specifically finds that the Veteran does not have ED, then the examiner must provide an explanation for doing so. The examiner should be requested to offer an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent degree of probability) that the Veteran's ED was caused or aggravated by his diabetes mellitus. The examiner must explain the rationale for any opinions given. If the examiner cannot answer the above question without resorting to mere speculation, the examiner should state why this is so. If the original VA examiner (from 2012) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted 2. Thereafter, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a Supplemental Statement of the Case (SSOC) and afforded the appropriate opportunity to respond thereto. The appellant has 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). ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs