Citation Nr: 1339190 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-07 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hypertension. 2. Entitlement to service connection for a disability manifested by hair loss, claimed as due to herbicide exposure. 3. Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure. 4. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for depression. 5. Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder (PTSD) and anxiety with memory loss and confusion. 6. Entitlement to service connection for a skin disability, claimed as due to herbicide exposure. 7. Entitlement to service connection for arthritis, claimed as affecting the back and knees. 8. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 9. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to September 1971. This matter comes before the Board of Veterans' Affairs (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. In September 2009, the RO issued a rating decision denying the Veteran's claims of entitlement to service connection diabetes mellitus and arthritis, among other disabilities. The RO issued a July 2011 rating decision denying his petitions to reopen claims of entitlement to service connection for depression and hypertension as well as claims for entitlement to service connection for an acquired psychiatric disorder (including PTSD and anxiety with memory loss and confusion), hair loss, a skin disorder, ischemic heart disease, and erectile dysfunction. In addition to the paper claims file, an electronic file, the Virtual VA paperless claims processing system, is also associated with the Veteran's record. Review of the Virtual VA system revealed additional documents pertinent to the present appeal. These documents were carefully reviewed by the Board. In February 2012, the Veteran and his spouse testified before the below-signed Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board remanded the Veteran's appeal in September 2012 for additional evidentiary development. As relevant to the claims decided herein, the Board instructed the AMC to obtain additional VA treatment records and Social Security Administration (SSA) records, to request the Veteran to identify any private treatment records and to authorize VA to obtain those records, and to readjudicate the claims. In compliance with the Board's instructions, the AMC requested the Veteran's updated VA treatment records as well as his SSA records. The AMC also requested that the Veteran submit authorizations to obtain private treatment records. The AMC subsequently readjudicated the Veteran's claims in a February 2013 statement of the case. Thus, the Board finds that there has been substantial compliance with its September 2012 remand instructions with respect to the claims decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The issues of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for depression, as well as entitlement to service connection for an acquired psychiatric disorder, arthritis, a skin disability, diabetes mellitus, and erectile dysfunction, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. By way of a December 2008 rating decision, the RO denied the Veteran's claim for entitlement to service connection for hypertension; although the Veteran submitted a timely notice of disagreement to that rating decision and the RO subsequently issued a statement of the case, he did not submit a timely substantive appeal. 2. The evidence associated with the claims file since the last final denial in December 2008 does not relate to an unestablished fact necessary to substantiate the claim for service connection for hypertension. 3. The evidence of record does not substantiate or establish the existence of a current disability manifested by hair loss at any time during the appeal. 4. The evidence of record does not substantiate or establish the existence of current ischemic heart disease at any time during the appeal. CONCLUSIONS OF LAW 1. The December 2008 rating decision is the last final decision regarding the issue of entitlement to service connection for hypertension. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. Evidence received since the December 2008 rating decision is not new and material; the claim of entitlement to service connection for hypertension is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). 3. The criteria for a grant of service connection for a disability manifested by hair loss have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2013). 4. The criteria for a grant of service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duty to Notify and the Duty to Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353 -23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A supplemental statement of the case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Correspondence dated in April 2009 and November 2010 provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. These letters were issued prior to the rating decisions on appeal. Moreover, following issuance of the April 2009 and November 2010 correspondences, and opportunity for the Veteran to respond, the recent February 2013 supplemental statement of the case reflects readjudication of the claims. Hence, the Veteran is not shown to be prejudiced by the timing of the notice. See Mayfield, 20 Vet. App. at 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an statement of the case or supplemental statement of the case is sufficient to cure a timing defect). Regarding the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that, if a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. Here, in the November 2010 letter, the Veteran was provided the new and material evidence standard that was applicable to the Veteran's application to reopen his claim for service connection for hypertension. The letter set forth the reasons for the prior denial of this claim and the type of evidence that the Veteran would need to submit in order to successfully reopen his claim. Notably, in a claim to reopen, the duty to assist by arranging for an examination or securing a medical opinion does not attach until the claim has been reopened. Evidentiary development in this matter is complete to the extent possible. Additionally, the Board also notes that neither the Veteran nor his representative have raised a claim of clear and unmistakable error (CUE) in a final rating decision, pursuant to 38 C.F.R. § 3.105(a) (2013). See Fugo v. Brown, 6 Vet. App. 40 (1993) and Damrel v. Brown, 6 Vet. App. 242 (1994) (emphasizing the pleading requirements for raising, and burden of proof for establishing, a CUE claim). Concerning the VA's duty to assist, the Board notes that the Veteran's relevant post-service VA and private treatment records, records from the SSA, and his own lay statements as well as lay statements from others in support of his claim have been obtained. Although the Veteran vaguely made reference to the potential of other private treatment records which have not been associated with his claims file at his February 2012 Travel Board hearing, he did not provide a sufficient response to the AMC's efforts to identify and obtain authorization for additional records. Specifically, the Veteran signed and returned several blank VA Form 21-4142s in response to the AMC's correspondence seeking authorization to obtain additional private treatment records. Under the law, VA must provide a medical examination or obtain a medical opinion when such action is necessary to make a decision on the claim. "Necessary" refers to situations in which the evidence of record, including consideration all information and lay or medical evidence including statements of the claimant, (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2). Here, as discussed in greater detail below, the evidence does not show that the Veteran has been diagnosed with ischemic heart disease or a disability manifested by hair loss at any time during the course of this appeal. As such, no examination is warranted. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010); see also Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995) (observing that to establish service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury). Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the hearing transcript reflects that the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. Appropriate colloquies were conducted between the Veteran and the undersigned, in accordance with Stuckey v. West, 13 Vet.App. 163 (1999), and Constantino v. West, 12 Vet. App. 517 (1999). The transcript reflects that the Veterans Law Judge asked the Veteran about his contentions and informed him that evidence relating the claimed disabilities to his period of active duty service was necessary to substantiate his claims. As such, the Board finds that consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claims has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issue on appeal were nonprejudicial to the Veteran. The Veteran has been afforded ample opportunity to present evidence and argument in support of his claims. See 38 C.F.R. § 3.103. He has retained the services of a representative, and presented testimony before the undersigned at a Board hearing. Accordingly, the Board will address the issues on appeal below. II. New and Material Evidence Claim The Veteran contends that his claimed hypertension developed due to service. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a chronic disease or injury, or had a preexisting injury permanently aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, hypertension, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If there is no showing of a 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 can also be found for any disease diagnosed after discharge, if the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). At the time of the RO 's initial denial of the Veteran's service connection claim for hypertension in December 2008, the evidence of record included service treatment records, a June 2008 statement in support of the claim, VA treatment records dated from March 2006 to July 2008, and the report of a September 2008 VA joints examination. The December 2008 rating decision denied the Veteran's claim on the basis that the Veteran's service treatment records did not show that he was treated for or diagnosed as having hypertension in service, and that post-service evidence did not show a diagnosis of hypertension until 2006. Although the Veteran submitted a timely notice of disagreement to the adverse December 2008 rating action and the RO subsequently issued a statement of the case in September 2009, he did not submit a timely substantive appeal (VA Form 9 or equivalent) in order to perfect an appeal as to the issue of service connection for hypertension. 38 C.F.R. § 20.202. As VA took no actions that would indicate to the Veteran that this issue remained on appeal, the requirement for a substantive appeal may not be waived. Percy v. Shinseki, 23 Vet.App. 37 (2009). The December 2008 rating action was not formally appealed and it is final. The RO received the Veteran's petition to reopen the claim for service connection for hypertension in October 2010. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since the December 2008 rating decision which denied the Veteran's claim for entitlement to service connection for hypertension, additional evidence has been associated with the claims file: VA treatment records dated from July 2006 to November 2012; private treatment records dated from March 2005 to February 2006; the report of an April 2009 Agent Orange registry examination; lay statements made on the Veteran's behalf received in July 2010 and November 2010; the report of a December 2010 VA joints examination; the report of a February 2011 VA PTSD examination; the report of a June 2011 VA ischemic heart disease examination; the transcript of the Veteran's February 2012 Travel Board hearing; and the Veteran's SSA records. The Veteran's recent VA treatment records indicate that he continues to be diagnosed as having hypertension; however, these records do not opine as to the probable etiology or date of onset of the diagnosed hypertension. Although the evidence submitted since the last final decision regarding hypertension in December 2008 is new in that it was not previously of record, the newly submitted evidence is not material. Essentially, the new records show only the presence of current and past findings of hypertension. The fact that the Veteran had hypertension at the time of the prior rating decision was already of record. To this extent, it is redundant of evidence already on file, and it is not material. To be "material" it would have to go toward one of the unestablished factors in the claim. Essentially, it would have constitute evidence showing that the Veteran had hypertension in service, or otherwise linking the currently diagnosed disorder with service. Here, none of the newly associated evidence received since the December 2008 rating decision has provided any medical evidence showing an in-service incurrence or aggravation of hypertension. Likewise, the evidence received since the respective final rating decision does not provide an etiological link between the Veteran's hypertension and service or a service-connected disability. The newly submitted medical evidence only demonstrates what was previously known, that the Veteran has current hypertension and that he receives treatment for hypertension. Additionally, new lay statements and testimony supporting the Veteran's claim of service connection are redundant of the Veteran's earlier statements indicating that he developed such hypertension as a result of service. Such statements are duplicative of evidence that was already of record and they do not provide competent medical evidence supportive of his claim. The evidence received since the December 2008 rating decision does not contain credible medical evidence indicating that the Veteran has hypertension related to service, or hypertension that developed within a year of his September 1971 separation from service. The additional evidence received is not "material" since it does not relate to an unestablished fact necessary to substantiate his service connection claim. As previously noted, the Board has considered the applicability of Shade v. Shinseki, 24 Vet. App. 110, 117-118 (2010) (new evidence would raise a reasonable possibility of substantiating the claim if, when considered with older evidence of record, it would at least trigger the Secretary's duty to assist by providing a medical opinion), in the present claim. The new evidence received by VA since the December 2008 rating decision does not relate to the unestablished elements of in-service incurrence or aggravation, nor does it relate to the unestablished elements of a nexus to service for the claim. VA has not received any evidence showing that the current hypertension developed in service or within a year of separation from service, or that it is related to service or to a service-connected disability. Accordingly, the Board finds that the claim for entitlement to service connection for hypertension shall not be reopened. III. Service Connection Claims Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Here, the Veteran contends that he suffers from hair loss and ischemic heart disease as a result of military service, to include as due to Agent Orange exposure in Vietnam. The RO has conceded that he served in Vietnam. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that such veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2011). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The enumerated diseases which are deemed to be associated with herbicide exposure: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes; Hodgkin's disease; ischemic heart disease; chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). Id. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 81,332 (Dec. 27, 2010). In addition to the presumptive regulations, a veteran may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran seeks entitlement to service connection for ischemic heart disease, one of the enumerated diseases which are deemed to be associated with herbicide exposure. At the outset, however, the Board emphasizes that the Veteran has not been diagnosed as having ischemic heart disease. The Veteran's service treatment records are silent for any cardiac symptomatology. Significantly, his September 1971 Report of Medical Examination at separation from service indicated that his heart and vascular system were within normal limits. Additionally, although the Veteran and his spouse testified at his February 2012 Travel Board hearing that the Veteran was diagnosed as having ischemic heart disease following stress tests in 2005 or 2006, VA treatment records explicitly ruled out ischemic heart disease as a diagnosis. Specifically, the results of a Cardiolite Treadmill Stress Test conducted in June 2008 ruled out the presence of ischemic heart disease. Later, in June 2011, the Veteran was provided with a VA ischemic heart disease examination, at which time the examiner clearly indicated that the Veteran did not have ischemic heart disease. There is no other evidence of record suggesting that the Veteran has ever been diagnosed as having ischemic heart disease. Similarly, there is no documentation of a medical diagnosis, such as alopecia areata, underlying the Veteran's claimed disability manifested by hair loss. Moreover, the Board emphasizes that a disability manifested by hair loss is not among one of the enumerated diseases which are deemed to be associated with herbicide exposure. See 38 C.F.R. § 3.309(e). The Board recognizes that, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include to establish a diagnosis of a condition when (1) a 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. Id. Similarly, the Court has held that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). However, the Board points out that the existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board observes that although the Veteran claims that he has been diagnosed as having ischemic heart disease and claims to be suffering from a disability manifested by hair loss, the more probative evidence does not establish the presence of these claimed disabilities. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that there must be "medically competent" evidence of a current disability, although "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. In this case, however, there is no medically competent evidence of current disability with respect to the claimed ischemic heart disease and hair loss. The only evidence indicative of these disabilities are the Veteran's own generalized lay statements that are essentially contradicted by the lack of medical evidence in the record to this effect with respect to hair loss, and by the medical evidence explicitly indicating that ischemic heart disease is not present. The Board finds that such inconsistencies undermine the Veteran's credibility as a reliable historian. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, the service connection claims for ischemic heart disease and a disability manifested by hair loss were filed in October 2010; there was no evidence of a clinical disability/diagnosis relating to these disorders on file at that time (resolved or unresolved), nor has such been presented at any time subsequently since the claim has been pending. Congress specifically limits entitlement to service connection for disease or injury to cases where there is a disability. In the absence of proof of current disability due to disease or injury there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Likewise, the Federal Circuit has noted that in order for a veteran to qualify for entitlement to compensation under statute, the existence of a disability must be proved, and as having resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). A viable pathology (injury or disease) that would account for his vague complaints has not been established. In this case, the only evidence in support of the claims is the Veteran's own statements and testimony without any factual foundation that establishes disease or injury related to service. Therefore, the Board concludes that there has been no evidence of disability, disease, or residuals of injury presented in this case for which service connection may be granted. The preponderance of the evidence is against the claims and there is no doubt to be resolved. Service connection for ischemic heart disease and a disability manifested by hair loss must thus be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having not been submitted, the application to reopen the claim for entitlement to service connection for hypertension is denied. Service connection for a disability manifested by hair loss, claimed as due to herbicide exposure, is denied. Service connection for ischemic heart disease, claimed as due to herbicide exposure, is denied. REMAND The December 2008 rating decision included a denial of entitlement to service connection for depression. The Veteran submitted a timely notice of disagreement to that denial, but, as with the claim for hypertension, he did not submit a formal appeal. He submitted a new claim for depression in October 2010, as well as a claim for an acquired psychiatric disorder (to include PTSD with memory loss and confusion), and both issues were denied in a July 2011 rating decision. Although the Veteran addressed the denial of these issues in his August 2011 notice of disagreement, the RO did not address them on subsequently issued statements of the case. A handwritten note within the claims file indicated that the RO reopened and granted the claim for service connection for depression, but no such rating action appeared in the record. Due to this procedural history, in its September 2012 decision, the Board added a petition to reopen the claim of entitlement to service connection for depression, as well as a separate claim of entitlement to service connection for an acquired psychiatric disorder (including PTSD with memory loss and confusion) to the title page. The Board then instructed the AMC to issue the Veteran a statement of the case which addressed his petition to reopen the claim for service connection for depression and the claim of entitlement to service connection for an acquired psychiatric disorder to include memory loss and confusion, accompanied by notification of his appellate rights. Significantly, the Board emphasized that the Veteran must then perfect an appeal with respect to these issues in order to obtain appellate review. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). However, in February 2013, the AMC merely added the issues of entitlement to service connection for depression and an acquired psychiatric disorder together with the other issues in a supplemental statement of the case and did not provide the Veteran with a proper notice of his appellate rights with respect to the issues of new and material evidence to reopen a claim of entitlement to service connection for depression and entitlement to service connection for an acquired psychiatric disorder. As such, the Veteran did not perfect an appeal with respect to these issues. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, additionally, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Here, as the AMC failed to issue the Veteran a statement of the case which addressed his petition to reopen the claim for service connection for depression and the claim of entitlement to service connection for an acquired psychiatric disorder to include memory loss and confusion, accompanied by notification of his appellate rights, the Board finds it necessary to remand these issues in order to preserve the Veteran's due process rights and ensure compliance with its previous September 2012 remand instructions. Id. In addition, the Veteran's claim of entitlement to service connection for a skin disability, claimed as due to herbicide exposure, was also addressed and remanded by the Board in its September 2012 decision. As with the other remanded issues on appeal, the Board instructed the AMC to provide the Veteran and his representative with a supplemental statement of the case with respect to the issue if it was not granted in full following the additional development requested by the Board. Curiously, however, the AMC's February 2013 supplemental statement of the case did not address the issue of entitlement to service connection for a skin disability. As such, the Board finds it necessary to remand this issue in order to readjudicate it in a rating decision or supplemental statement of the case and ensure compliance with its previous September 2012 remand instructions. Id. The Veteran also seeks entitlement to service connection for arthritis, claimed as affecting the back and knees. However, the Board notes that the Veteran is already service connection for chondromalacia patella, with calcification of the patellar tendon, of the bilateral knees, and receives separate 10 percent evaluations for each knee. A review of the record reveals an April 2007 radiology report showing patellar hypertrophic spurs and mild narrowing in the right knee. In addition, a private physician correspondence dated in January 2006 indicated that the Veteran was diagnosed as having a disc bulge at L4-L5 with some foraminal stenosis, while a statement signed by the same private physician in January 2006 diagnosed the Veteran as having lumbar disc herniation. The Board recognizes that, in general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155 ). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Board also recognizes that service connection is warranted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. As such, the Board concludes that a new VA examination, as specified in greater detail below, should be performed in order to determine the nature and probable etiology of any currently diagnosed arthritis, and its relationship, if any, to his service-connected chondromalacia patella, with calcification of the patellar tendon, of the bilateral knees. With respect to the Veteran's claim for entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, the RO has conceded that he was presumed to be exposed to Agent Orange during his service in Vietnam. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Board notes that diabetes mellitus is among the diseases for which service connection based on herbicide exposure will be presumed. The Veteran has not yet been provided with an examination specific to his diabetes claim. In disability compensation claims, VA must provide a medical examination 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) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Here, although the RO and AMC denied his claim on the basis that there was no diabetes diagnosis of record, the Board notes that the Veteran has been followed for "pre-diabetes." In light of the above, the AMC should provide the Veteran with an appropriate VA examination addressing whether his condition can be diagnosed as diabetes. Finally, the Veteran seeks entitlement to service connection for erectile dysfunction. As discussed above, VA must provide a medical examination 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. See McLendon, 20 Vet. App. at 83-86. Here, the Veteran has competently indicated that he suffers from current erectile dysfunction. Moreover, a review of the Veteran's service treatment records reveals genitourinary symptomatology in April 971 that was treated as a possible sexually transmitted disease. Specifically, on April 20, 1971, the Veteran reported the presence of a burning sensation upon urination for the past 5 days, and reported that his last sexual contact was one week prior. However, a urinary analysis was negative. Four days later, on April 24, 1971, the Veteran sought treatment for a rash on his groin which he reported was present for the past two weeks. In light of the above, the RO should provide the Veteran with an appropriate VA examination addressing the existence and probable etiology of his claimed erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran proper statutory and regulatory notice that advises him about what is needed to substantiate a claim for service connection on a secondary basis. 2. Make arrangements with the appropriate VA medical facility for the Veteran to be provided with an orthopedic examination conducted by a physician to determine the nature and etiology of any arthritic disability, to include arthritis of the back and bilateral knees. The claims file, to include medical treatment records showing diagnoses of patellar hypertrophic spurs and mild narrowing in the right knee, disc bulge at L4-L5 with some foraminal stenosis, and lumbar disc herniation, as well as a copy of this remand must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished, to include X-rays if deemed necessary by the examiner, and all clinical findings should be reported in detail. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (a) Does the Veteran currently have arthritis, to include arthritis of the back and/or bilateral knees, manifested by symptomatology that is separate and distinct from his service-connected chondromalacia patella, with calcification of the patellar tendon, of the bilateral knees? (b) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed arthritis, to include arthritis of the back and/or bilateral knees, was caused by or incurred in his period of active duty service from March 1969 to September 1971, or manifested within a year following his separation from service in September 1971? (c) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed arthritis, to include arthritis of the back and/or bilateral knees, was caused or aggravated by the Veteran's service-connected chondromalacia patella, with calcification of the patellar tendon, of the bilateral knees? If the Veteran has current arthritis that is aggravated by his service-connected chondromalacia patella, with calcification of the patellar tendon, of the bilateral knees, but otherwise unrelated to service, then the examiner is requested to provide an opinion as to the approximate baseline level of severity of the nonservice-connected arthritis (e.g., slight, moderate, severe) before the onset of aggravation The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship or a finding of aggravation; while "less likely" weighs against the claim. The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A rationale should be provided for any opinion or conclusion expressed. 3. Provide the Veteran with an appropriate VA examination to determine whether he has had diabetes mellitus presently or at any time during the pendency of this appeal. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file has been reviewed. Based on the clinical examination and a review of the evidence of record, the examiner must identify whether the Veteran has diabetes mellitus, presently or at any point during the claims process. A complete rationale for all opinions must be provided, and the examiner is asked to specifically reference the Veteran's various "pre-diabetes" diagnoses contained within the record. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Schedule the Veteran for a VA examination in connection with his claim of service connection for erectile dysfunction. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner should opine as to the nature of the Veteran's claimed erectile dysfunction. If a disability manifested by erectile dysfunction is diagnosed, then the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) related to his period of military service, to include treatment for urinary burning and a groin rash in April 1971. All opinions should be set forth in detail and explained in the context of the record. If the examiner determines that an etiological opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. 5. After the above-directed development, issue the Veteran a statement of the case, accompanied by notification of his appellate rights, which addresses his petition to reopen the claim for service connection for depression and the claim of entitlement to service connection for an acquired psychiatric disorder to include memory loss and confusion. The Veteran is reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal (VA Form 9) must be filed following the RO's issuance of the statement of the case. 38 C.F.R. § 20.202 (2013). If the Veteran perfects his appeal, conduct any further appellate proceedings as are established by relevant statute, regulation, and precedent. 6. Readjudicate the Veteran's remaining claims for entitlement to service connection. If any of the claims are not granted in full, then the Veteran and his representative must be provided a supplemental statement of the case. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs