Citation Nr: 1337160 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-34 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to a compensable rating for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus, type II. 3. Entitlement to service connection for diabetic retinopathy, claimed as secondary to service-connected diabetes mellitus, type II. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from August 1961 to February 1965. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The issues on appeal were previously remanded by the Board in May 2013 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination TO assist in determining the level of severity for the erectile dysfunction disability. This was accomplished, and the claims were readjudicated in an August 2013 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran does not require insulin therapy to control his diabetes mellitus. 2. No penile deformity has been shown. 3. Diabetic retinopathy has not been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2013). 2. The criteria for a compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.115b, DC 7522 (2013). 3. Diabetic retinopathy was not incurred in or aggravated by service, nor is it secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of 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 extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to his claims. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Board has considered whether staged ratings are for consideration. The Board finds, that a staged rating is not warranted with respect to the Veteran's claims for an increased rating for diabetes mellitus and erectile dysfunction. Diabetes Mellitus Under DC 7913, a 20 percent rating is assigned where insulin and restricted diet, or; use of oral hypoglycemic agent and restricted diet is required. A 40 percent rating is assigned where insulin, restricted diet, and regulation of activities is required. A 60 percent rating is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is assigned for diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulations of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. According to Note (1) of DC 7913, compensable complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under DC 7913. After carefully reviewing the record, the Board finds that a preponderance of the evidence is against a finding that an initial evaluation in excess of 20 percent is warranted for the Veteran's diabetes mellitus, type II. As noted above, the next highest rating (40 percent) is assigned where insulin, restricted diet, and regulation of activities is required. A recent VA treatment record, dated April 2013, reflects that the Veteran had "non insulin dependent diabetes mellitus." August 2010 and November 2011 VA treatment records also reflect that he is not on insulin therapy. In the October 2010 VA examination, he reported not using insulin to control his diabetes mellitus. As he is not on insulin therapy, a rating in excess of 20 percent for diabetes mellitus under DC 7913 is not warranted. As for compensable complications of diabetes mellitus, the Board notes that a 10 percent rating has already been assigned for peripheral neuropathy for each of the lower extremities which were found to be medically related to diabetes. Erectile dysfunction and diabetic retinopathy are discussed below. Accordingly, the Board finds that a separate compensable rating for complications of diabetes mellitus is not warranted. Erectile Dysfunction The Veteran is already in receipt of special monthly compensation based on loss of use of a creative organ as of May 2005 and that issue is not before the Board. Under DC 7522, a 20 percent rating applies where there is deformity of the penis with loss of erectile power. The evidence of record consists of a May 2007 VA diabetes mellitus examination where it was noted that the Veteran was prescribed Vardenafil for erectile dysfunction. The May 2007 VA evaluation did not involve a genital examination and did not provide an opinion as to penile deformity. In the October 2010 VA diabetes mellitus examination, the Veteran reported that his erectile dysfunction began eight to ten years ago. He stated that vaginal penetration with ejaculation was not possible and that he was currently being treated with Viagra. He reported some improvement in the erectile dysfunction with this medication. The October 2010 VA examiner noted that the Veteran's sexual life had been negatively affected from the residuals of erectile dysfunction related to his diabetes mellitus. The VA examiner did not conduct a physical examination of the Veteran's creative organ and did not provide an opinion as to penile deformity. Pursuant to the Board's May 2013 remand, the Veteran underwent another VA examination in July 2013 to assess the severity of his erectile dysfunction, to include any penile deformity. The July 2013 VA examiner reviewed the VBMS claims file and conducted a physical examination. The Veteran reported that when he used Viagra, he was able to achieve an erection sufficient for penetration and ejaculation. Upon physical examination, the examiner noted that the Veteran's penis, testes, and epididymis were normal. A penile deformity or abnormality was not noted. A review of VA treatment notes of record does not reveal a diagnosis or symptoms relating to a penile deformity. After reviewing all the evidence of record, both lay and medical, the Board finds that the preponderance of the evidence shows that a compensable rating for erectile dysfunction is not warranted under DC 7522 because the Veteran does not have a deformity of the penis. No other diagnostic codes are pertinent to the erectile dysfunction. With respect to both claims, the Board has considered the Veteran's statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno, 6 Vet. App. at 470, he is not, however, competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's diabetes and erectile dysfunction has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, the Board finds these records to be more probative than the Veteran's subjective evidence of complaints of increased symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest in the outcome of a proceeding may affect the credibility of testimony). In sum, after a careful review of the evidence of record, the Board finds that the benefit of the doubt rule is not applicable and the appeals are denied. Next, the Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's diabetes mellitus and erectile dysfunction disabilities. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's diabetes mellitus and erectile dysfunction disabilities is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. Diabetes mellitus requires oral hypoglycimic agents and restrictive diet, but not insulin therapy. A 20 percent rating under DC 7913 specifically contemplates his impairments. Further, DC 7522 assigns a 20 percent rating for loss of erectile power and penile deformity; however, the evidence does not demonstrate a penile deformity. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (2012). " Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2013). The functional limitations imposed by the Veteran's disability are specifically contemplated by the criteria discussed above. In the absence of exceptional factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Service Connection for Diabetic Retinopathy Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). The claimed condition of diabetic retinopathy is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) and therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. The Veteran contends that his service-connected diabetes mellitus disability has negatively impacted his life, to include eye complications. In a June 2007 VA treatment note, the VA physician interviewed the Veteran and conducted a detailed eye examination. The examiner noted "no diabetic retinopathy or eye disease." It was further reported that he had no visual impairment or ocular pathology secondary to diabetes mellitus. A November 2008 VA treatment record diagnosed type II diabetes mellitus without retinopathy. In an October 2010 VA examination report, the Veteran denied having microvascular complication of retinopathy from diabetes mellitus. VA treatment records contain a December 2012 VA optometry eye examination where he reported stable vision and no other visual or ocular complaints. A dialation exam revealed no retinopathy present in either eye. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board reiterates that the Veteran is competent to report symptoms as they come to him through his senses, diabetic retinopathy is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the absence of diabetic retinopathy, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326 (2013); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In a May 2006 letter, VA informed him of the evidence necessary to substantiate his claim for service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The May 2006 letter also provided him with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims regarding initial ratings for diabetes mellitus and erectile dysfunction arise from the Veteran's disagreement with the initial evaluation assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service treatment records, and written assertions from the Veteran. Further, the Veteran was afforded VA examinations in May 2007 (diabetes mellitus), June 2007 (eyes), October 2010 (diabetes mellitus) and July 2013 (erectile dysfunction). The Board finds that the VA examinations obtained in this case are adequate as they contained a description of the history of the disability at issue; document and consider his complaints and symptoms; and fully address the relevant rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran. Significantly, he has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained; therefore, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). ORDER An initial rating in excess of 20 percent for diabetes mellitus, type II, is denied. A compensable rating for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus, type II, is denied. Service connection for diabetic retinopathy, claimed as secondary to service-connected diabetes mellitus, type II, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs