Citation Nr: 1341177	
Decision Date: 12/13/13    Archive Date: 12/20/13

DOCKET NO.  13-08 285	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for right knee pain with arthritis, including as secondary to the service-connected diabetes mellitus, type II. 

2.  Whether new and material evidence has been submitted to reopen a claim for service connection for arthritis of the left knee, including as secondary to the service-connected diabetes mellitus, type II. 

3.  Whether new and material evidence has been submitted to reopen a claim for service connection for glaucoma, including as secondary to the service-connected diabetes mellitus type II. 

4.  Entitlement to service connection for pseudofolliculitis barbae (claimed as a skin condition).

5.  Entitlement to service connection for Zenker's diverticulum (claimed as a throat disorder) to include as secondary to anoxia brain injury due to diabetic nephropathy with hypertension. 

6.  Entitlement to specially adapted housing and special home adaptation.  Entitlement to specially adapted housing or a special home adaptation grant.

7.  Entitlement to an initial disability rating for diabetes mellitus, type II, in excess of 10 percent from May 4, 1995 to March 4, 1998 and in excess of 20 percent.

8.  Entitlement to a compensable disability rating for nonproliferative diabetic retinopathy. 

9.  Entitlement to an initial disability rating for diabetic nephropathy with hypertension in excess of 30 percent from July 30, 2007 to January 25, 2011; in excess of 60 percent from January 26, 2011 to March 9, 2011; and in excess of 80 percent from March 10, 2011.  

10.  Entitlement to an initial disability rating for peripheral neuropathy weakness of the right upper extremity, a residual of anoxic encephalopathy (claimed as stroke) in excess of 10 percent from December 21, 2006 and in excess of 40 percent from September 13, 2012.

11.  Entitlement to an initial disability rating for peripheral neuropathy weakness of the left upper extremity, a residual of anoxic encephalopathy (claimed as stroke) in excess of 10 percent from December 21, 2006 and in excess of 30 percent from September 13, 2012.

12.  Entitlement to an initial compensable disability rating for peripheral neuropathy weakness of the right lower extremity, a residual of anoxic encephalopathy (claimed as stroke), from December 4, 2003; in excess of 10 percent from July 30, 2007; and in excess of 20 percent from September 13, 2012.

13.  Entitlement to an initial compensable disability rating for peripheral neuropathy weakness of the left lower extremity, a residual of anoxic encephalopathy (claimed as stroke), from December 4, 2003; in excess of 10 percent from July 30, 2007; and in excess of 20 from September 13, 2012.

14.  Entitlement to a compensable disability rating for degenerative joint disease of the right 5th metacarpal, status post fracture (claimed as hand problems and arthritis of the hands). 

15.  Entitlement to a compensable disability rating for degenerative joint disease of the left 5th metacarpal, status post fracture (claimed as hand problems and arthritis of the hands). 

16.  Entitlement to an initial disability rating for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels, in excess of 30 percent from January 17, 1990 to August 30, 2004 and in excess of 60 percent from August 31, 2004.

17.  Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) (also claimed as depression and schizophrenia).  

18.  Entitlement to an effective date prior to May 4, 1995 for the grant of service connection for diabetes mellitus, type II.

19.  Entitlement to an effective date prior to January 17, 1990 for the grant of service connection for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels.

20.  Entitlement to an effective date prior to September 22, 2003 for the grant of service connection for PTSD.  

21.  Entitlement to an effective date prior to September 22, 2003 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 

22.  Entitlement to an effective date prior to September 22, 2003 for Dependents' Educational Assistance (DEA). 

23.  Entitlement to an effective date prior to August 31, 2004 for entitlement to special monthly compensation at the housebound rate.

24.  Entitlement to an effective date prior to January 11, 2012 for entitlement to special monthly compensation at the aid and attendance rate. 


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his sister


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel


INTRODUCTION

The Veteran had active service from July 1963 until June 1966 and from September 1966 until January 1968. 

This matter comes before the Board of Veterans' Appeals  (BVA or Board) on appeal from rating decisions in April 2000, July 2001, March 2003, April 2003, August 2004, November 2004, February 2008, May 2009, November 2010, March 2012, August 2012, November 2012, March 2013, and May 2013 from the above Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the New Orleans RO.  The transcript from that hearing has been associated with the claims file and reviewed.  

This case was most recently before the Board in April 2010 and a many number of issues were remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development and adjudicative action.  The AMC completed all requested development and returned this matter to the Board for further appellate consideration.  

During the pendency of the appeal, and after the April 2010 Board remand, the Veteran perfected appeals for entitlement to service connection for pseudofolliculitis barbae, a throat disorder; entitlement to specially adapted housing/special home adaptation grant as well as increased ratings for degenerative joint disease of the left and right fifth metacarpals, heart disease, and PTSD; and earlier effective dates for the grants of service connection for diabetes mellitus, degenerative joint disease of the left and right fifth metacarpals, heart disease, peripheral neuropathy involving all four extremities, PTSD, TDIU, DEA and SMC. 

In an August 2012 rating decision, the RO granted service connection for hypertensive heart disease.  In that decision, the RO listed that disability as arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease, atypical chest pain, possibly secondary to spasm coronary vessels and increased the disability rating to 100 percent from June 29, 2012.  The RO explained that because the evidence showed the Veteran's hypertensive heart disease was caused by his service-connected hypertension, entitlement to service connection for that disability is established.  Therefore, in order to avoid rating the Veteran twice for the same symptoms, the RO also determined that since all of the Veteran's heart disorders would be evaluated based on the same rating criteria, a single evaluation had been assigned for the combined effects of these disorders.  See 38 C.F.R. § 4.14 and Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994).  In the instant decision, the Board's references to the Veteran's "heart disease" are references that encompass all heart disorders whether referred to as arteriosclerotic heart disease, coronary artery disease, atypical chest pain, possibly secondary to spasm coronary vessels or as hypertensive heart disorder. 

In a November 2012 rating decision, the RO granted service connection for weakness of the right upper extremity, left upper extremity, right lower extremity, and left upper extremity as residuals of anoxic encephalopathy (claimed as stroke) and increased the disability ratings to 40 percent, 30 percent, 20 percent and 20 percent respectively.  Again to avoid rating the Veteran twice for the same symptoms, the RO also determined that these disorders would be evaluated together with the previously service connected peripheral neuropathy of for each extremity.  See 38 C.F.R. § 4.14; Esteban, supra.

In that same decision, the RO also granted service connection for degenerative joint disease of the right fifth metacarpal and left fifth metacarpal (claimed as arthritis of the hands).  These disorders would be evaluated together with already service-connected status post fracture, right fifth metacarpal and service-connected status post left fifth metacarpal.  See 38 C.F.R. § 4.14; Esteban, supra.  In the instant decision, the Board's references to the Veteran's "degenerative joint disease" are references that encompass all hand disorders whether referred to as arthritis of the hands or as status post fracture of the right and left fifth metacarpals.

As such, despite the fact that the Veteran has been granted service connection for hypertensive heart disease, weakness of the all four extremities as a residual of anoxic encephalopathy, and arthritis of the hands, separate evaluations will not be assigned, as any symptoms of these disabilities will be considered under the Veteran's newly characterized disabilities as listed on the title page of the present decision.

The Board has reviewed the Veteran's claims file as well as the record maintained in the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) to ensure complete consideration of all the evidence.  

The issues of entitlement to service connection for glaucoma, entitlement to specially adapted housing/special home adaptation grant, and entitlement to a compensable disability rating for diabetic retinopathy 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.  Service connection for bilateral knee disorders was denied by the Board in December 1977.  

2.  An unappealed August 1994 rating action affirmed the denial of service connection on the basis that new and material evidence had not been submitted to reopen the claims.  This rating action was the last final denial as to those issues on any basis before the present attempt to reopen the claim. 

3.  Evidence received since the August 1994 decision is either duplicative or cumulative of evidence previously considered, or, if new, does not bear directly and substantially upon the specific matter under consideration, and is not, by itself or in connection with evidence previously assembled, so significant that it must be considered in order to fairly decide the merits of the claim.  

4.  Service connection for glaucoma was denied by the Board in September 1999.

5.  Evidence received since the September 1999 Board decision bears directly and substantially upon the specific matter under consideration; is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the claim for service connection for glaucoma. 

6.  The Veteran's pseudofolliculitis barbae (PFB) was not present in service, and there is no competent and credible evidence relating it to his military service.  

7.  There is at least an approximate balance of positive and negative evidence that shows the Veteran's service-connected anoxic brain injury due to diabetic nephropathy with hypertension aggravates his Zenker's diverticulum (claimed as a throat disorder).

8.  For the period from May 4, 1995 to March 4, 1998, the Veteran's diabetes mellitus was controlled with restricted diet; there is no objective medical evidence that he had been prescribed insulin or an oral hypoglycemic agent.

9.  Since March 4, 1998, the Veteran's diabetes mellitus has required treatment by an oral hypoglycemic agent and a restricted diet, without any regulation of activities.

10.  For the period from July 30, 2007 to January 25, 2011, the Veteran's diabetic nephropathy with hypertension was primarily manifested by hypertension with diastolic pressure of predominantly 100 or more that requires continuous medication for control.

11.  For the period from January 26, 2011 to March 9, 2011, the Veteran's diabetic nephropathy with hypertension was primarily manifested by clinical evidence of definite decrease in kidney function and hypertension with diastolic pressure of predominantly 120 or more.  

12.  For the period since March 10, 2011, the Veteran's diabetic nephropathy with hypertension is primarily manifested by BUN (blood urea nitrogen) readings of at least 40mg%.  There is no indication of the Veteran's condition requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular.

13.  For the period from December 21, 2006 to September 12, 2012, the Veteran's peripheral neuropathy weakness of the right and left upper extremities, residuals of anoxic encephalopathy was manifested by no more than mild incomplete paralysis of the median nerve, mild neuritis or mild neuralgia.

14.  From September 13, 2012, the Veteran's peripheral neuropathy weakness of the right upper extremity, residuals of anoxic encephalopathy was manifested by no more than moderate incomplete paralysis of the middle radicular group, moderate neuritis or moderate neuralgia.

15.  From September 13, 2012, the Veteran's peripheral neuropathy weakness of the left upper extremity, residuals of anoxic encephalopathy was manifested by no more than moderate incomplete paralysis of the middle radicular group moderate neuritis or moderate neuralgia. 

16.  From December 3, 2004 to July 29, 2007, the Veteran's peripheral neuropathy weakness of the right and left lower extremities was manifested by sensation that was largely intact. 

17.  From July 30, 2007 to September 12, 2012, the Veteran's peripheral neuropathy weakness of the right and left lower extremities, residuals of anoxic encephalopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve, mild neuritis or mild neuralgia. 

18.  From September 13, 2012, the Veteran's peripheral neuropathy weakness of the right and left lower extremities, residuals of anoxic encephalopathy was manifested by no more than moderate incomplete paralysis of the sciatic nerve, moderate neuritis or moderate neuralgia. 

19.  The Veteran is in receipt of the maximum schedular rating assignable for his degenerative joint disease of the right fifth metacarpal, status post fracture.  It is not manifested by functional loss equivalent to amputation of that digit; it does not affect the functioning of the other fingers of the right hand, and does not interfere with the overall function of the right hand.

20.  The Veteran is in receipt of the maximum schedular rating assignable for his degenerative joint disease of the left fifth metacarpal, status post fracture.  It is not manifested by functional loss equivalent to amputation of that digit; it does not affect the functioning of the other fingers of the left hand, and does not interfere with the overall function of the left hand.

21.  For the period from January 17, 1990 to August 30, 2004, the Veteran's arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels, was manifested by mild left atrial dilatation.  

22.  For the period since August 31, 2004 for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels is manifested by left ventricular dysfunction with an ejection fraction between 30 to 50 percent, and a workload of 3 to 5 METs, with angina.

23.  The evidence of record reflects that since September 22, 2003, the Veteran has essentially been unable to demonstrably maintain employment, more nearly approximating that of total occupational impairment, along with significant social impairment due to PTSD.  

24.  There is no communication of record prior to May 4, 1995 that can reasonably be construed as a formal or informal claim for entitlement to VA compensation benefits based on diabetes mellitus.  

25.  An original claim for service connection for heart disease was denied by the Board in December 1977 decision. 

26.  A subsequent claim for service connection for heart disease was denied by the RO in February 1984 and not appealed. 

27.  On January 17, 1990, the RO received the Veteran's claim for entitlement to non-service connected pension benefits, which was accepted as an informal claim for heart disease.

28.  In March 2012, the RO granted service connection for arteriosclerotic heart disease, coronary artery disease, and atypical chest pain, possibly secondary to spasm of the coronary vessels.  An effective date of January 17, 1990 was assigned, the date of the Veteran's reopened claim. 

29.  An original claim for service connection for a nervous condition was denied by the RO in a January 1976 rating decision.  This decision was not appealed.  A subsequent claim for service connection for PTSD was denied by the RO in October 1991.  The denial was affirmed by the Board in a September 1999 decision.

30.  No further claim for service connection for PTSD was received at the RO from the Veteran until September 22, 2003.  

31.  In April 2010, the Board reopened the claim of service connection for an acquired psychiatric disorder on the basis that new and material evidence sufficient to reopen the previously denied issue had been received.  

32.  A November 2012 rating decision granted service connection for PTSD and assigned a 70 percent disability rating, effective September 22, 2003, the date of receipt of the Veteran's claim to reopen.

33.  Prior to September 22, 2003, the Veteran did not meet the schedular criteria for TDIU, and the preponderance of the competent and credible evidence of record did not show that service-connected disabilities alone precluded him from substantial gainful employment or otherwise presented an unusual disability picture as to warrant extraschedular consideration. 

34.  The Veteran was not entitled to TDIU and thus was not eligible for DEA prior to September 22, 2003.

35.  The minimum requirements for special monthly compensation at the housebound rate were not met prior to August 31, 2004. 

36.  The minimum requirements for special monthly compensation for aid an attendance were not met prior to January 11, 2012.


CONCLUSIONS OF LAW

1.  The August 1994 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).  

2.  New and material evidence has not been received to reopen the claim of entitlement to service connection for right and left knee disabilities.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (as in effect prior to August 29, 2001). 

3.  The September 1999 Board denial is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.1100(a), 20.1105 (2013). 

4.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for glaucoma.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (as in effect prior to August 29, 2001).

5.  The Veteran's PFB was not incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).

6.  Resolving all reasonable doubt, the Veteran's Zenker's diverticulum (claimed as a throat disorder) is aggravated by his anoxic brain injury due to service-connected diabetic nephropathy.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2013).

7.  The criteria for an initial disability rating for diabetes mellitus, in excess of 10 percent from May 4, 1995 to March 3, 1998, and in excess of 20 percent since March 4, 1998 have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913 (2013). 

8.  The criteria for an initial disability rating for diabetic nephropathy, in excess of 30 percent from July 30, 2007 to January 25, 2011, in excess of 60 percent from January 26, 2011 to March 9, 2011, and in excess of 80 percent from March 10, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.115b, DC 7541 (2013).

9.  From December 21, 2006 to September 12, 2012, the criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy weakness of the right and left upper extremities, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §  4.124, DC 8615 (2013).

10.  From September 13, 2012 the criteria for an initial disability rating in excess of 40 percent for peripheral neuropathy weakness of the right upper extremity, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124, DC 8611 (2013).

11.  From September 13, 2012 the criteria for an initial disability rating in excess of 30 percent for peripheral neuropathy weakness of the left upper extremity, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124 DC 8611 (2013).

12.  From December 3, 2004 to July 29, 2007, the criteria for an initial compensable disability rating for peripheral neuropathy weakness of the right and left lower extremities, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.31, 4.124 DC 8620 (2013).

13.  From July 30, 2007 to September 12, 2012, the criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy weakness of the right and left lower extremities, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124 DC 8620 (2013).

14.  From September 13, 2012, the criteria for an initial disability rating in excess of 20 percent for peripheral neuropathy weakness of the right and left lower extremities, residuals of anoxic encephalopathy have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.124 DC 8620 (2013).

15.  The criteria for a compensable disability rating for degenerative joint disease of the right fifth metacarpal, status post fracture are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71, DC 5227, 5230 (2013).

16.  The criteria for a compensable disability rating for degenerative joint disease of the right fifth metacarpal, status post fracture are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.71, DC 5227, 5230 (2013).

17.  From January 17, 1990 to August 30, 2004, the criteria for a disability rating higher than 30 percent for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, DC 7005 (2013).

18.  From August 31, 2004 to June 28, 2012, the criteria for a disability rating higher than 60 percent for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels were not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, DC 7005 (2013).

19.  Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 100 percent rating for the service-connected PTSD have been more nearly approximated since September 22, 2003.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.126, 4.130, DC 9411 (2013).

20.  The criteria for an effective date prior to May 4, 1995, for the grant of service connection for diabetes mellitus are not met.  38 U.S.C.A. §§ 5103(a), 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§  3.114, 3.400, 3.816 (2013).  

21.  The criteria for an effective date prior to January 17, 1990, for the grant of service connection for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels are not.  38 U.S.C.A. §§ 5103(a), 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§  3.114, 3.400(q)(1)(ii),(r), 3.816 (2013).  

22.  The criteria for an effective date earlier than September 22, 2003, for the grant of service connection for PTSD are not met.  38 U.S.C.A. §§  5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400(q)(ii) (2013).  

23.  The criteria for an effective date prior to September 22, 2003, for the grant of TDIU are not met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2013).  

24.  The criteria for an effective date earlier than September 22, 2003, for the award of basic eligibility to DEA under 38 U.S.C. Chapter 35, are not met.  38 U.S.C.A. § 3501 (West 2002); 38 C.F.R. §§ 3.807, 21.3021 (2013).

25.  The criteria for an effective date prior to August 31, 2004 for entitlement to special monthly compensation based on housebound status are not met.  38 U.S.C.A. § 1114(l)(s) 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.350, 3.400 (2013). 

26.  The criteria for an effective date prior to January 11, 2012, for the award of special compensation based on the need of aid and attendance of another person are not met.  38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a) (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, and 3.326(a) (2013).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated.  It has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled.  Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements).  

After the April 2010 Remand, the Veteran was most recently notified via letters dated in July 2010, August 2010, May 2012, and June 2012, of VA's duty to assist him in substantiating his newly-raised claims under the VCAA, and the effect of this duty upon his claims.  These letters also informed him of how disability ratings and effective dates are assigned.  See Dingess, 19 Vet. App. at 484.  To the extent that any letter did not comply with all dictates of Dingess, for the claims being denied, any question as to the appropriate disability rating or effective date ultimately is moot.  Thus, even non receipt of notice concerning these downstream elements of these claims is, at most, nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  

With respect to the new and material evidence issues, letters dated in November 2002, September 2004, and June 2010 informed the Veteran of what constituted new and material evidence to reopen the previously denied unappealed claims for service connection for the bilateral knee disorders and eye condition.  This correspondence also met the specificity required under Kent v. Nicholson, 20 Vet. App. 1 (2006), as the Veteran was advised of the exact reason for the previous denial and the evidence needed to reopen the claims for service connection.  The recent June 2010 letter also defined "new and material evidence" under the post-August 2001 standard.

Together, these letters addressed all notice elements.  Thus, nothing more was required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  [The timing defect of the July 2010, August 2010, May 2012, and June 2012 correspondence was cured by the RO's subsequent readjudication of the appeal and issuance of Statements of the Case (SOC) in November 2012 and May 2013 and Supplemental Statements of the Case (SSOCs) dated in March 2012, June 2012, March 2013, and September 2013.] 

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein.  His in-service and pertinent post-service treatment reports are of record.  VA was notified in September 2004 that the records concerning the Veteran held at the Social Security Administration  (SSA) had been destroyed.  38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010).  The Veteran has otherwise availed himself of the opportunity to submit relevant evidence and argument in support of his claims, including testimony at a Board hearing in July 2009.  The Board notes that during the long course of this appeal, the Veteran has been very prolific in his submissions to the VA with respect to his numerous claims as evidenced by the nine volumes of evidence already obtained.  His written contentions with regard to his claims have been carefully considered.  Following review of the extensive record, the Board finds that neither the Veteran nor his representative has 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.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  Here, the Veteran was afforded multiple VA examinations beginning in 2003.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that, collectively, the reports of these VA examinations are thorough and adequate upon which to base a decision with regard to the Veteran's claims.  The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him.  The opinions reflect a full review of all medical evidence of record, are supported by sufficient detail, refer to specific documents to support the conclusions reached and also provide the information necessary to evaluate his service-connected disabilities under the applicable rating criteria.  

While VA did not provide the Veteran with examination and/or did not obtain a medical opinion, as to the origins of the claimed left and right knee disorders or his PFB, the Board finds that VA had no obligation to do so.  Under the VCAA, VA is obliged to provide an examination when the veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service.  38 U.S.C.A. § 5103A(d) 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  

As discussed below, the Veteran has asserted that service connection for PFB is warranted, but there is no competent and credible evidence establishing that an event, injury, or disease occurred in service, and therefore there is no event in service to which an examiner could link the PFB.  See also Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that, if the evidence of record does not establish that the veteran suffered an event, injury, or disease in service, no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (holding that the Board is not required to accept a medical opinion that is based on the veteran's recitation of medical history); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (holding that VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement).  

Rather, the Board finds that overall the evidence, which indicates that the Veteran did not have PFB in service, and did not complain of pertinent symptoms until many years after separation, as well as the absence of competent evidence of a possible nexus between service and the claimed disorder (aside from the Veteran's mere assertion, which alone does not, under current caselaw, suffice to render a VA examination or opinion necessary), warrants the conclusion that a remand for a medical opinion is not necessary to decide the claim.  Moreover, the medical evidence, which shows PFB years after service, is not insufficient.  

In addition, VA need not conduct an examination or obtain a medical opinion with respect to the issue of whether new and material evidence has been received to reopen the previously denied claims of service connection for bilateral knee disorders because the duty under 38 C.F.R. § 3.159(c)(4) applies to a claim to reopen only if new and material evidence is presented or secured.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  Accordingly, examinations for these particular issues are not required here, even under the low threshold of McLendon. 

The Board has also found substantial compliance with its April 2010 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  VA examinations were conducted in 2012 and outstanding VA treatment records were obtained and associated with the claims file.  

VA has satisfied its duty to assist the Veteran in apprising him of the evidence needed, and in obtaining evidence, to support his claim.  No useful purpose would be served in remanding this matter for yet more development.  A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran.  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); & Quartuccio v. Principi, supra.  


II.  Law and Analysis - New and Material Evidence

Claims for right and left knee disabilities were previously denied in rating decisions dated in April 1968 and November 1973, respectively.  The Board denied the claims in December 1977.  The Veteran apparently appealed the decisions and the Board affirmed the denial in December 1977.  The Board decision is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100.  

In a subsequent decision dated in August 1994, the RO denied service connection for bilateral knee disorders, on the basis that new and material evidence had not been submitted to reopen the claims.  The Veteran failed to perfect his appeal and the decision became final.  The Veteran appealed the ruling concerning the timeliness of his appeal; however, the Board upheld the finding that the Substantive Appeal was not timely filed.  See September 1999 Board Decision.  Accordingly, the August 1994 rating decision became final and is the last final rating decision of record.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. 

With regard the Veteran's glaucoma claim, the RO originally denied service connection in July 1997 on the basis that it was neither incurred in nor caused by service.  The Board denied the claim in September 1999.  The Board decision is final.  38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100.

The Veteran filed informal claims, seeking to reopen these matters.  See VA Forms 21-4132, received in October 1999 and April 2000.  The current appeals arise from the RO's November 2004 rating decision that found new and material evidence had not been received sufficient to reopen the claims of entitlement to service connection for bilateral knee disabilities and glaucoma.  Regardless of the RO's actions, however, the Board must still determine whether new and material evidence has been received in this matter.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims).

When an unappealed rating decision by the RO becomes final, that claim may only be reopened by the submission of new and material evidence.  38 U.S.C.A. §§ 5108, 7105(c) (West 2002).  When determining whether a claim should be reopened, the Board performs a two-step analysis.  The first step is to determine whether the evidence presented or secured since the last final disallowance of the claim is "new" and "material."  38 U.S.C.A. § 5108; Smith v. West, 12 Vet. App. 312 (1999).

Also, if VA finds that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of a Veteran's claim in light of all evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996).  In determining whether evidence is new and material, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510 (1992). 

During the course of the appeal, the provisions of 38 C.F.R. § 3.156(a), defining new and material evidence, were amended and apply to claims to reopen filed on or after August 29, 2001. See 38 C.F.R. § 3.156(a); 66 Fed. Reg. 45,620 (Aug. 29, 2001).  Since, the Veteran's most recent request to reopen these claims was filed prior to that date, the earlier definition of new and material evidence remains applicable for these issues.  

Under the earlier definition, "new" evidence has not been previously submitted to agency decision makers and bears directly and substantially upon the specific matter under consideration.  "Material" evidence is evidence which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim.  New and material evidence cannot be cumulative or redundant.  38 C.F.R. § 3.156(a).  

The Board notes that the Veteran now argues that his bilateral knee disabilities and glaucoma were caused or aggravated by the service-connected diabetes mellitus.  In other words, he has raised a new theory of entitlement on the basis of secondary service connection; however, the new theory of entitlement does not constitute a new claim.  A new theory of causation for the same disease or injury that was the subject of a previously denied claim cannot be the basis of a new claim under 38 U.S.C.A. § 7104(b).  Boggs v. Peake, 520 F.3d 1330, 1336 (Fed. Cir. 2008).  The Court has held that separate theories in support of a claim for benefits for a particular disability do not equate to separate claims for benefits for that disability.  Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim.  Robinson v. Mansfield, 21 Vet. App. 545, 550 (2008); Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000).  As such, in order to reopen the claims of service connection for bilateral knee disabilities and glaucoma, including as secondary to the service-connected diabetes mellitus type II, the Veteran must submit new and material evidence regardless of the theory of entitlement he is pursuing. 



A.  Bilateral Knees 

The RO's current denial in this case is predicated upon the fact that new and material evidence has not been submitted to reopen the claim.  When the claim was denied in April 1994, the RO explained that the evidence submitted showed treatment for bilateral knee pain with arthritis of the left knee following service.  There was no indication of treatment during service, nor any medical opinion relating the conditions to service.  Thus, any "new" evidence would have to contribute toward substantiating the contention that a currently diagnosed right or left knee disorders were as incurred in or aggravated by service or service-connected disability.  

The evidence of record at the time of the August 1994 rating decision consisted of service treatment records, which show the Veteran was treated for a right knee injury in February 1976 that required hospitalization and treatment.  The remaining records tend to show that this right knee injury was acute and transitory, as it resolved with treatment and was not present at the time of his separation physical in 1968.  These records are entirely negative for complaints or findings of a left knee.  

A post-service VA examination in March 1968 revealed a normal right knee.  There were no complaints of left knee pain and none were documented.  Other post-service medical records show the Veteran was first diagnosed with internal derangement of the left knee after being involved in a collision in September 1973, 5 years post-service with no indication that it was related to the service.  The Veteran also had a history of postoperative medial meniscectomy of the left knee and chondromalacia of the left patella.  See VA examination dated in November 1975.  The remaining records show additional right knee complaints, but no objective evidence of a right knee disability associated with service.  

The relevant evidence that has been added to the file since the April 1994 decision is voluminous, consisting of a number of volumes of evidence that includes VA and private outpatient treatment records dated from 1994 to 2012; testimony from a personal hearing held in July 2009; and the Veteran's written statements.  The outpatient treatment records in some cases are duplicates, which when not taken into consideration, show ongoing evaluation of the Veteran's various current medical conditions, including degenerative joint disease of both knees, but provide no new information about its etiology.  The fact that the Veteran had knee disorders at the time of the prior rating determination was not in dispute.  Here none of the newly-received evidence contains a competent medical opinion relating them to service or any service-connected disability.  

In any event, merely showing additional evaluation and treatment of these disabilities is insufficient reason to reopen the claims.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing other crucial matters such as causation, does not constitute new and material evidence).  See also Cox v. Brown, 5 Vet. App. 95, 99 (1993) and Morton v. Principi, 3 Vet. App. 508, 509 (1992) (per curiam) (medical records describing Veteran's current condition are not material to the issue of service connection and are insufficient to reopen claim for service connection based on new and material evidence).  

At his July 2009 hearing, the Veteran testified that he injured both knees during service.  See Hearing Transcript p. 10.  The Board acknowledges that he is competent to give evidence about what he sees and feels.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board is also aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  

However to the extent that the Veteran's testimony is an attempt to establish service connection, the Board notes that such evidence essentially constitutes reiterations of his assertions of bilateral knee disorders being related to military service, which were advanced and addressed by the RO in April 1994, and, thus, cannot be considered "new" within the meaning of 38 C.F.R. § 3.156(a).  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); see also Moray v. Brown, 5 Vet. App. 211, 214 (1993).  See also Anglin v. West, 11 Vet. App. 361, 368 (1998) (Veteran's testimony supporting fact previously rejected regarding an alleged PTSD stressor was cumulative).  The Veteran is not qualified to state that his right knee symptoms in service are associated with his current bilateral knee disorders; even medical professionals require radiological findings and other testing to diagnose arthritis.  There is no clinician who has suggested that the Veteran's symptoms in service represented the onset of bilateral knee disorders or that has associated them with any service-connected disability.  The Veteran's testimony is not new and material in nature. 

Thus, the Board concludes that new and material evidence has not been received sufficient to reopen the previously denied claim for service connection for a right knee and left knee disorders.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).


B.  Glaucoma

The evidence of record at the time of the last final denial of service connection for glaucoma in September 1999 consisted of service treatment records and a post-VA clinical records and examination reports.  In denying the Veteran's claim, the Board basically found that there was no current evidence of glaucoma.  

Since the September 1999 Board decision, newly-received evidence includes clinical records which indicate a current diagnosis of chronic open angle glaucoma.  See VA ophthalmological note dated in March 2000.  This would bear directly and substantially on the issue of whether or not the Veteran had a current disability.  See McClain v. Nicholson, 21Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim).  See Kent v. Nicholson, 20 Vet. App. 1, 10 (2006)(finding that "the question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied").  

This evidence was not previously of record at the time of the September 1999 Board decision, and bears directly and substantially upon the specific matter under consideration, specifically, whether the Veteran has glaucoma.  Alone and in connection with evidence previously assembled, the treatment record is of requisite significance that it must be considered in order to fairly decide the merits of the claim, as when presumed credible it contributes to a more complete view of the Veteran's eye disorder.  38 C.F.R. § 3.156(a); Hodge, supra.  Therefore, the Board finds that evidence submitted subsequent to the September 1999 Board decision constitutes new and material evidence that is sufficient to reopen the previously denied claim.  

As new and material evidence has been received, the claim for service connection for glaucoma is reopened.  The Board notes however that "[t]his does not mean that the claim will always be allowed, just that the case will be reopened and [that] the new evidence will be considered in the context of all other evidence for a new determination of the issue."  Smith v. Derwinski, 1 Vet. App. 178, 180 (1991).  Accordingly, this claim is reopened.  38 U.S.C.A. § 5108.  However, rather than immediately readjudicating this claim on its underlying merits, the Board instead is remanding this claim for further development.


III.  Law and Analysis - Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  "To establish a right to compensation for a present disability, a Veteran must show:  "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Direct service connection may not be granted without evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. 

PFB and Zenker's diverticulum are not explicitly recognized as chronic diseases under 38 C.F.R. § 3.309(a).  Thus, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310(a).  In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). 

After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim.  Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 


A.  Pseudofolliculitis Barbae (PFB)

The Veteran seeks service connection for PFB he contends had its onset during military service. He reports that during service he would develop lesions after shaving which caused discoloration of his face and as a result was advised to not shave regularly.  The Veteran's sister testified that she has observed a rash on his face and neck.  He now only shaved after a beard grew out and he had to brush the beard first then use a medicated topical solution to control his symptoms.  See June 2002 CO hearing transcript and July 2009 Travel Board hearing transcript.  

Turning to the evidence in the current appeal, service treatment records do not show any indications of PFB or that the Veteran was issued a shaving profile because of bumps and soreness when he shaved.  Rather physical examinations conducted throughout the Veteran's period of active duty service contain no complaints or findings related to a skin disorder other than tinea versicolor (for which he is already service connected). 

Post-service records are also negative for any medical evidence of a skin disorder, other than tinea versicolor, until March 1998, when the Veteran was seen during a follow-up visit for pseudofolliculitis barbae. 

The Veteran was afforded a VA examination in March 2000.  The examiner considered the Veteran's reported history of razor bumps that started when he was in Vietnam.  The Veteran explained he had a shave waiver and did not have any complaints with sensation of shaving.  He currently shaved once a week and the lesions were controlled with erythromycin gel topically applied twice a day.  He also combed the beard at night.  Clinical examination showed no active lesions of the beard.  The pertinent diagnosis was pseudofolliculitis barbae by history. 

The remaining VA treatment records show the Veteran has not submitted or identified any medical records which suggest that the PFB originated during military service, and no physician has specifically related it to service.  

Having carefully reviewed the record, the Board is unable to attribute the Veteran's PFB to his military service.  Service treatment records are entirely negative for any pertinent complaints, treatment, or diagnoses, and there is no evidence that the PFB first documented in 1998, 30 years post service, was manifested prior to that date.  

Consideration is given to the Veteran's assertion of experiencing continuous problems since service.  However, there is simply no corroborative evidence on file, establishing that he sought or required treatment or evaluation for symptoms suggestive of PFB in the immediate years after his service had ended.  The fact that no pertinent problems were actually identified prior to 1998, diminishes the probative value of this particular assertion.  Although not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim.  See Mason v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000).

As PFB was not shown during service or for years thereafter, service connection can only be granted if there is some competent evidence linking the current disorder to service.  Here, there is no such competent evidence. 

In reaching this conclusion, the Board has not overlooked the Veteran's contentions or his statements to healthcare providers regarding his condition.  He argues that his PFB had its onset during military service.  The Board is keenly aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006).  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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

Lay evidence can be competent and sufficient 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.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  The Federal Circuit Court has held, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  So, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file - including any medical evidence addressing the determinative issue of causation.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

The Veteran is competent to give evidence about what he sees and feels (e.g., to report that he had problems shaving during service and had problems since service).  However he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.  Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating and identifying dermatological conditions, or to attribute them to a specific cause.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012).  

Although the Board recognizes the sincerity of the arguments advanced by the Veteran, his contentions as to the etiology/onset of his claimed PFB are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which he simply does not have.  That is to say, while the Veteran is competent to say that he has experienced certain symptoms, even symptoms that often may be associated with an eventual diagnosis of PFB, he is not in turn competent to ascribe these symptoms to disability related to his military service.  

More importantly, however, the Board finds that the Veteran's accounts of shaving problems during and since service are not entirely credible because they are inconsistent with the record.  See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).  In this regard, the Board notes the Veteran is certainly competent to state that he had shaving problems.  However, his statements are not supported by any evidence.  Also, the Veteran's description of these problems is clearly refuted by service treatment records which are negative for any record of him having received a shaving profile in service or of having any specific complaints of PFB.  See Curry v. Brown, 7 Vet. App. 59 (1994) (a veteran's version of events from the past may be of limited credibility and probative value in the absence of medical records showing treatment for the claimed disorder).  Unfortunately these contradictions diminish the probative value of the Veteran's contentions. 

Therefore, the Veteran's opinion that his claimed PFB is related to his military service while not discounted entirely, is entitled to little, if any, probative weight in the face of the remaining evidentiary record.  See Jandreau supra & Buchanan supra.  Accordingly, the preponderance of the evidence is against this claim, and there is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b). 


B.  Zenker's diverticulum (claimed as throat disability) 

The Veteran also seeks service connection for a throat disorder, diagnosed as Zenker's diverticulum, he contends had its onset during military service.  In the alternative he contends that his throat disorder was caused, or made worse, by service-connected disability.  See VA Form 21-4138, received in November 2005.  

Service connection is currently in effect for, among a host of other disorders, diabetes, diabetic nephropathy, peripheral neuropathy, and heart disease.  Other evidence relevant to the Veteran's claim for service connection includes a June 2012 VA examination report which shows he was hospitalized in December 2010 with left arm pain and weakness in the left arm and leg due to transient ischemia attack and left arm deep vein thrombosis.  During hospitalization the Veteran had a cardiopulmonary arrest resulting in acute diastolic heart failure with anoxic brain injury that was considered at least as likely as not caused or aggravated by the underlying service-connected diabetes, coronary artery disease, or diabetic nephropathy with hypertension.

In connection with his claim for service connection, the Veteran was afforded a VA examination in September 2012 where he gave a history of swallowing problems as a result of his palate swelling since service.  He reported that he underwent a tonsillectomy in the 1970s and at that time his uvula was cut to help fix the problem.  However his swallowing has progressively worsened since an anoxic episode in December 2010.  The examiner concluded that from history, the Veteran's dysphagia was at least aggravated by his anoxic encephalopathy event occurring in 2010.  It was also noted, from history, that the Veteran had a preexisting dysphagia which he dated back to service and the examiner could not without speculation differentiate or comment on how much of the Veteran's dysphagia was preexisting and how much was due to the 2010 event.  She explained that this is a question that could best be answered by having the Veteran see a gastrointestinal and/or ENT specialist and undergo a swallow study as evaluation of dysphagia was out of the realm of her expertise in general neurology.  

In November 2012, the claims file was returned for an additional medical opinion.  At that time a different VA examiner reviewed the claims file, including service treatment records, post-service VA outpatient treatment reports, and the September 2012 VA examination and summarized the history and findings reflected by these records.  The clinical impression was Zenker's diverticulum presented as dysphagia, which the examiner concluded was less likely as not (less than 50/50 probability) incurred in or caused by the claimed in-service injury, event, or illness.  

The examiner noted that although the September 2012 VA examiner concluded that the Veteran's dysphagia was aggravated by an anoxic event occurring in 2010, this conclusive statement was based on the examiner's inability to assess the Veteran's throat condition prior to his aggravation and the suggestion that the required opinion should be resolved by a GI or ENT examiner.  Thus this opinion was based on lack of conclusive evidence.  The VA examiner further noted that the previous neurological examination indicated that a swallow study should be performed, yet the proposed study was not performed until November 2012, therefore the neurologist's opinion was not based on convincing medical evidence.  

The VA examiner then concluded that the baseline of the Veteran's claimed throat disorder could not be determined without resorting to mere speculation, as the diagnosed condition of Zenker's diverticulum preexisted the Veteran's anoxic episode in 2010 by at least greater than 40 years.  Therefore, the link between his current throat disorder and anoxic episode in 2010 remained unsubstantiated.  

In this case, there are conflicting medical opinions as to whether the Veteran's Zenker's diverticulum was caused or aggravated by service-connected disability. 

In determining whether service connection is warranted for disease or disability, VA must determine 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 the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is as likely as not that the Veteran's claimed throat disorder is aggravated by his acute diastolic heart failure with anoxic brain injury that was considered at least as likely as not caused or aggravated by one or more the Veteran's underlying service-connected disabilities.  

There is evidence in support of a grant of service connection based on aggravation.  Specifically, the September 2012 VA examiner concluded that the Veteran's dysphagia was at least aggravated by his anoxic encephalopathy event.  However she could not determine, without resorting to speculation, how much of the Veteran's dysphagia was preexisting and how much was due to the 2010 event.  Instead she indicated that this was a question that could best be answered by having the Veteran see a gastrointestinal and/or ENT specialist and undergoing a swallow study as evaluation of dysphagia was out of the realm of her expertise in general neurology.  

Evidence against the claim consists of the November 2012 VA opinion which concluded that the link between the Veteran's current throat disorder and anoxic episode in 2010 remained unsubstantiated.  The opinion generally observes that the baseline of the claimed throat disorder could not be determined without resorting to mere speculation, as the diagnosed condition of Zenker's diverticulum preexisted the Veteran's anoxic episode in 2010 by at least greater than 40 years. 

The Court has held that when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability.  Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010).  In this case, both VA examiners indicated that the available information simply would not allow him to provide the requested definitive medical nexus opinion.  And explained why such an opinion is not possible or feasible under the circumstances presented.  So it is unlikely that either VA examiner would be able to provide a more definitive medical opinion even if given the additional opportunity to consider other evidence or information, etc., and provide supplemental comment. 

Under the circumstances of this particular case, the Board finds that the evidence is at least evenly balanced regarding the question of whether the Veteran's Zenker's diverticulum has been aggravated by one or more of his service-connected disabilities, with no sound basis for choosing one medical opinion over the other.  To be sure, the Board is not entirely satisfied with either medical opinion.  That said, there is no adequate reason to reject the medical opinion of record that is favorable to the Veteran.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998).  While the supporting medical evidence is not unequivocal, it has nevertheless placed the pertinent record in relative equipoise. 

The Board resolves the benefit of the doubt in the Veteran's favor and finds that the requirements for secondary service connection for Zenker's diverticulum, claimed as a throat disorder are met.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board notes that the Veteran's claim for service connection for Zenker's diverticulum as secondary to service-connected disability was filed after the October 2006 revision to 38 C.F.R. § 3.310.  The language in the revised version of 38 C.F.R. § 3.310 referencing baseline levels of disability potentially serves to bar compensation if such levels have not been demonstrated.  However, the question of the baseline level of disability is deemed to be a rating issue and does not preclude the grant of secondary service connection in this decision.  While it may impact whether a compensable evaluation may be awarded, this is not the question presently before the Board.  See Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as, although related, each having a distinct meaning as specified by Congress).

As in Ferenc, above, the RO will assign an appropriate disability rating. 


IV.  Law and Analysis - Increased Ratings

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

The Veteran's entire history is considered when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation [38 C.F.R. §§ 4.2, 4.41], the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue.  Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).  However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required.  Fenderson v. West, 12 Vet. App. 119 (1999).  The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown.  38 C.F.R. § 4.31. 


A.  Diabetes Mellitus

The Veteran's diabetes mellitus is currently rated as 10 percent disabling from May 4, 1995 and 20 percent disabling from March4, 1998.  He contends that his disability is more severe than is reflected in the current evaluations.  

Under DC 7913, when diabetes mellitus is manageable by restricted diet only, a 10 percent evaluation is appropriate.  A 20 percent evaluation is warranted for diabetes mellitus requiring insulin and restricted diet or an oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for diabetes requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is warranted 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 evaluated separately.  Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation 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, warrants a 100 percent evaluation.  38 C.F.R. § 4.119.

In order to demonstrate a regulation of activities, medical evidence is required to show that both occupational and recreational activities have been restricted.  Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007) (emphasis added).  The phrase "regulation of activities" means "avoidance of strenuous occupational and recreational activities."  Camacho, 21 Vet. App. at 362 (quoting 38 C.F.R. § 4.119, DC 7913 (defining the term within the criteria for a 100 percent rating)).

Complications of diabetes mellitus are to be evaluated separately unless they are part of the criteria used to support a 100 percent rating.  Noncompensable complications are considered part of the diabetic process under DC 7913.  Note 1 following 38 C.F.R. § 4.119.  

The Veteran's diabetic complications have been separately rated.  These include compensable ratings for diabetic nephropathy with hypertension, peripheral neuropathy of all four extremities, and a noncompensable disability rating for bilateral diabetic retinopathy.  As the Veteran currently receives separate ratings for these complications, the related symptoms cannot be considered in evaluating his level of disability due to diabetes mellitus.  38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses are to be avoided).  Therefore, the Board will address the above diabetic complications separately. 

For the period from May 4, 1995 to March 3, 1998

The record during this timeframe shows that while the Veteran's diabetes mellitus quite likely required a restricted diet, there is no medical evidence that insulin or an oral hypoglycemic agent had been prescribed.  As the Veteran's diabetes is not shown to have required insulin or oral hypoglycemic agent at any time from May 4, 1995 to March 3, 1998, the criteria for a 20 percent disability rating were not met.

Therefore, an initial rating in excess of 10 percent for diabetes mellitus for the period from May 4, 1995 to March 3, 1998 is not warranted.  As the criteria for a 20 percent rating are not met, it logically follows that the criteria for a rating higher than 20 percent are not met for the period May 4, 1995 to March 3, 1998. 


For the period since March 4, 1998

VA outpatient treatment records dated March 4, 1998 show that during a follow-up visit it was noted that the Veteran had been noncompliant with diet and was forgetting to take his medication.  His current medications included Mellaril and Glyburide.  The medication Metformin was added.

Based upon these findings, the RO, in a March 2012 rating decision, increased the Veteran's disability rating to 20 percent, effective March 4, 1998, the date of the VA examination in accordance with 38 C.F.R. § 3.400(o).  In essence, this was the earliest date on which it was factually ascertainable, from the record that an increase in disability warranting the assignment of a higher disability rating had occurred.  The Board agrees.  

However since March 4, 1998, the Veteran's diabetes does not more nearly approximate the criteria for a 40 percent or higher rating.  The evidence relevant to the severity of the Veteran's service-connected diabetes includes a December 2003 VA examination report which shows the Veteran reported nocturia, but had no history of hypoglycemia or ketoacidosis. 

A subsequent VA examination dated in July 2007 shows the Veteran's current treatment was insulin more than once daily.  Novolin 0/30 70 units in the morning and 35 units at night.  He had history of hypoglycemia or ketoacidosis, which did not require hospitalization.  He continued to complain of frequency and urgency.  The Veteran was instructed to follow a restricted or special diet but was not restricted in his ability to perform strenuous activities. 

During a VA general medical examination in April 2009, the Veteran's clinical findings were largely unchanged.  He remained on insulin more than once daily Novolin 70/30 90 units in the morning 45 units in the evening and continued to complained of frequency and urgency.  The Veteran saw his diabetic care provider monthly or less often and had a history of hypoglycemia or ketoacidosis, which did not require hospitalization.  The Veteran was instructed to follow a restricted or special diet, but was not restricted in ability to perform strenuous activities.  

The remaining records include VA outpatient treatment records show ongoing evaluation of the Veteran's blood sugar levels with no restriction of exercise or activities.  Rather he was counseled on the benefits of daily exercise for people with diabetes.  See VA outpatient treatment dated in November 2010.

The pertinent evidence in conjunction with the applicable law and regulations, shows that, for the most part, the criteria for the 20 percent and 40 percent levels are similar, except for the determination as to whether diabetes requires regulation of activities.  Here, the Veteran's diabetes mellitus requires him to be on insulin and a restricted diet, which warrants the current 20 percent evaluation under DC 7913.  However, neither the VA examination reports nor outpatient records show that a doctor has determined that regulation of activities (avoidance of strenuous occupational and recreational activities) is medically required as necessary for a 40 percent.  Also, in the absence of episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations or twice a month visits to a diabetic care provider, the Board finds no basis for 40 percent evaluation percent under DC 7913. 

Accordingly, the Board concludes that the preponderance of the evidence is against this increased rating claim.  There is no reasonable doubt to be resolved.  38 U.S.C.A. § 5107(b) (West 2002).  


B.  Diabetic Nephropathy with Hypertension

The Veteran's diabetic nephropathy with hypertension is presently rated 30 percent disabling from July 30, 2007 to January 25, 2011; 60 percent disabling from January 26, 2011 to February 28, 2011; and 80 percent disabling from March 1, 2011.  He contends that his disability is more severe than is reflected in the current evaluations.  

Renal involvement in diabetes mellitus, sickle cell anemia, systemic lupus erythematosus, vasculitis, or other systemic disease processes will be rated as renal dysfunction.  38 C.F.R. § 4.115b, DC 7541.

Renal dysfunction is rated at 30 percent when there is constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101.  A 60 percent rating is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under diagnostic code 7101.  An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg%; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion.  A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular.  See 38 C.F.R. § 4.115a.

Under DC 7101, a 10 percent evaluation is warranted for diastolic pressure predominately 100 or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent disability evaluation requires diastolic readings of predominantly 110 or more or; systolic readings of 200 or more.  A 40 percent disability evaluation required diastolic readings of predominantly 120 or more.  A 60 percent disability evaluation required diastolic readings of predominantly of 130 or more.  38 C.F.R. § 4.104.

For the period from July 30, 2007 to January 25, 2011

The record shows the Veteran underwent a VA examination in July 2007 for diabetes mellitus.  At that time his history of treatment of hypertension since the 1960s was noted, but there were no symptoms of diabetic nephropathy.  Blood pressure readings were 158/92, 166/88, and 157/85.  Laboratory results at that time showed a creatinine level of 1.3, urea nitrogen of 23, and albumin of 4.1.  The clinical impression was diabetes with kidney disease.  

VA outpatient treatment records note several blood pressure readings between 2006 and 2008 in the range of 120-140/67-103 (systolic/diastolic).  Of these readings, there were no diastolic readings over 120 and systolic readings were predominantly under 200.  

During VA examination in April 2009, the Veteran reported history of urinary urgency and frequency with daytime voiding intervals of 2-3 hours and nocturia three times per night.  There was no history of urinary incontinence, dialysis, obstructive voiding or urinary tract infections.  Blood pressure readings were 150/77, 142/81, and 148/71.  Laboratory results showed the Veteran's urea nitrogen was 23, and his creatinine level was 1.1, which were not higher than previously recorded during VA examination two years prior. 

Additional VA outpatient treatment records note various blood pressure readings between 2009 and 2011 in the range of 106-177/66-92 (systolic/diastolic).  Of these readings, there were no systolic readings over 160 and no diastolic readings of 120 or more.  Laboratory results showed creatinine levels between 1.1 to 1.6 mg% and BUN readings of 14 to 24 mg%.  

Private treatment records show the Veteran was hospitalized in January 2011 for symptoms of wheezing, chest pain, and shortness of breath secondary to congestive heart failure.  His past medical history was significant for chronic renal failure was noted.  A nephrology consultation shows the Veteran's creatinine was 1.3 in October 2010, 2.7 on January 17, 2011, and 3.0 January 20, 2011.  During the course of his hospitalization the Veteran's renal function worsened second to nebulizing treatments and intravenous diuretics use to treat his congestive heart failure and BUN readings of 40 and 41 were noted on January 21, 2011.  However once the Veteran's congestive heart failure was compensated his chronic kidney disease returned to baseline and later blood tests show that the Veteran's BUN levels did not exceed 37.  See clinical records from St. Elizabeth's Hospital dated in January 2011.

Based on the preceding evidence, the Board finds that from July 30, 2007 to January 25, 2011, the medical evidence of record does not support criteria for a disability rating in excess of 30 percent for diabetic nephropathy with hypertension as there is no evidence of constant albuminuria with some edema, a definite decrease in kidney function, or, hypertension with diastolic pressure predominantly 120 or more.  While mindful that BUN findings above 40 are in the range necessary for an 80 percent rating, these measurements appear to be an anomaly brought about as a result of the treatment for the Veteran's congestive heart failure rather than a chronic deterioration of his kidney disease or a particular stage in which his kidney disease deteriorated.

The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent from July 30, 2007 to January 25, 2011.

For the period from January 26, 2011 to March 9, 2011

The record during this timeframe includes, a discharge summary from the Veteran's period of hospitalization which shows his condition was stable with a creatinine level of 2.84 and BUN reading of 35.  Subsequent laboratory findings from that date forward show continued abnormal renal function with creatinine of 2.19 to 2.45 and BUN of 34 to 37.  See clinical records from St. Elizabeth's Hospital dated from January 2011 to February 2011.  

However, the Board finds there is no competent evidence of record indicating that the service-connected diabetic nephropathy is manifested by sufficient symptomatology to warrant a disability rating in excess of 60 percent.  There were no findings of edema or albuminuria during this brief three-month period.  The Veteran also did not have creatinine of at least 4mg% or generalized poor health characterized by lethargy, weakness, anorexia, weight loss or limitation of exertion.  On the contrary, the Veteran maintained his weight throughout the period and had no complaints of anorexia.  The Board finds that the preponderance of the evidence is against a rating in excess of 60 percent from January 26, 2011 to March 9, 2011.

For the period since March 10, 2011

Subsequent private treatment records show abnormal renal function with sustained BUN levels of 41 or greater beginning on March 10, 2011.  See emergency department records from St. Elizabeth Hospital dated March 10, 2011 to July 17, 2011.  

At no time during the period since March 10, 2011 does the clinical evidence indicate that the Veteran required kidney dialysis, or that he was precluded from more than sedentary activity because of persistent edema and albuminuria, or that he had a BUN reading of more than 80 mg%, a creatinine reading of more than 8 mg%, or that he suffered from markedly decreased function of his kidneys or his other organ systems, especially his cardiovascular system, such that assignment of a 100 percent schedular evaluation would be warranted.  There was no evidence of involvement of other organ systems.  The Veteran has a history of congestive heart failure; however, this is a part of the arteriosclerotic heart disease ratings criteria and forms the basis of the Veteran's separate rating, as discussed later in this decision below. 

The Board concludes that the criteria for a rating in excess of 80 percent have not been met since March10, 2011. 


C.  Peripheral Neuropathy of the Upper Extremities 

The Veteran's service-connected peripheral neuropathy of the right and left upper extremities is currently rated as 10 percent disabling from December 21, 2006 to September 12, 2012 under DC 8615, which addresses the median nerve.  The disability ratings for the right and left upper extremities were increased to 40 percent and 30 percent, respectively under DC 8611 which addresses the middle radicular group.  A September 13, 2012 effective date was assigned.

Under DC 8615, mild incomplete paralysis of the median nerve of either extremity warrants a 10 percent disability rating.  Moderate incomplete paralysis of the median nerve warrants a 20 percent (minor) or 30 percent (major) evaluation.  Severe incomplete paralysis of the median nerve warrants a 40 percent (minor) or 50 percent (major) evaluation.  Complete paralysis of the median nerve warrants a 60 percent (minor) or 70 percent (major) evaluation with the hand inclined to the ulnar side with the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, and the thumb in the plane of the hand (ape hand); incomplete and defective pronation of the hand with the absence of flexion of the index finger, feeble flexion of the middle finger, inability to make a fist, and index and middle fingers that remain extended; inability to flex the distal phalanx of the thumb with defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances.  38 C.F.R. § 4.124a.  

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.

The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination.  Only one hand shall be considered dominant.  As demonstrated by the medical evidence of record, the Veteran is right-hand dominant for VA rating purposes.  38 C.F.R. § 4.69. 


For the period from December 21, 2006 to September 12, 2012

Evidence relevant to the severity of the Veteran's service-connected peripheral neuropathy includes, a January 2007 VA peripheral nerves examination report.  At that time his primary complaint was of bilateral hand pain that began during service which has progressively worsened.  On examination the Veteran had decreased vibration in the both hands.  Detailed reflex examination revealed 2+ in the biceps and 1+ in the triceps.  There was no muscle atrophy or abnormal muscle tone or bulk.  There were no tremors, tics or other abnormal movements and no joint functions were affected.  The examiner noted the Veteran was unable to tolerate needles for NCS test and could not tolerate electrical stimulation for EMG.  The diagnosis was no peripheral neuropathy.  

During VA examination in July 2007, the Veteran continued to experience decreased vibratory sensation in the hands.  Examination of both upper extremities was within normal limits.  The clinical impression was diabetes mellitus with neurological disease. 

During VA examination in April 2009 the Veteran complained of numbness, tingling, and painful paresthesia in both hands that had spread out to the wrists.  He also complained of decreased sensation in the fingertips.  Examination revealed no peripheral edema and upper extremity peripheral pulses were normal.  The Veteran had normal muscle strength and tone in both upper extremities.  There was no evidence of atrophy, fasciculations, tremor or other involuntary movements.  The Veteran had diminished deep tendon reflexes of 1+.  There was also diminished light touch, pinprick and vibration, distally in the upper extremities.  The clinical impression was mild peripheral neuropathy of the upper extremities.  

The remaining records during this timeframe do not indicate a worsening in symptoms to warrant higher evaluations for his peripheral neuropathy.  There are no other specific findings of muscle weakness, atrophy, or limitations with respect to either upper extremity.  

Applying the regulations to the facts in the case, the Board finds that, prior to September 13, 2012, the criteria for a rating in excess of 10 percent were not met. The record during this timeframe largely reflects that sensory function of the both extremities was impaired, but not absent.  Despite the decreased sensation and slightly diminished reflexes in both hands and wrists, the Veteran generally had normal motor with no evidence of muscle spasm, muscle atrophy, or abnormal or limited movement of the fingers or thumb or loss of dexterity in either hand that would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the median nerve.  Moreover, the VA in April 2009 examiner specifically provided a diagnosis of mild peripheral neuropathy.  Given the evidence as outlined above, the Board finds that the current 10 percent rating adequately reflects the Veteran's current impairment due to the service-connected peripheral neuropathy of his upper extremities during this portion of the appeal period. 

The Board concludes that the criteria for a rating in excess of 10 percent have not been met from December 21, 2006 to September 12, 2012. 

For the period since September 13, 2012

Likewise since September 13, 2012, the criteria for a ratings in excess of 40 and 30 percent have not been met.  During VA examination in September 2012, the Veteran had 4/5 strength in both upper extremities.  Deep tendon reflexes were normal at 2+.  There was no muscle atrophy.  The examiner noted moderate muscle weakness in both upper extremities, but indicated that the Veteran's functioning was not so diminished that he would be equally served by amputation with prosthesis.  

Applying the regulations to the objective findings shown at the September 2012 VA examination, the Veteran's upper extremities neuropathy cannot be properly described as severe in degree.  The examiner noted moderate weakness in muscle strength, but there was no indication of any wasting in the upper extremities or evidence that range of motion of the arm, elbow, or wrist were lost or severely affected.  Although the Veteran's complaints are not entirely sensory, the objective evidence indicates that there was no significant muscle weakness, loss of sensation, abnormal or limited movement of the fingers or thumb or loss of dexterity in either hand.  Hence assignment of a higher evaluation based on a finding of severe incomplete paralysis is not appropriate. 

Therefore, the Board is of the opinion that since September 13, 2012, the objective findings and the Veteran's subjective complaints are contemplated by the assigned 40 and 30 percent ratings, and that higher ratings are not warranted. 


D.  Peripheral Neuropathy of the Lower Extremities 

The Veteran's service-connected peripheral neuropathy of the right and left lower extremities is currently rated as noncompensably disabling from December 4, 2003 to July 29, 2007; 10 percent disabling from July 30, 2007 to September 12, 2012, and 20 percent disabling from September 13, 2012. 

Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve.  A 20 percent rating requires moderate incomplete paralysis, a 40 percent rating requires moderately severe incomplete paralysis, and a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy.  The next higher evaluation of 80 percent requires complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.  38 C.F.R. § 4.124a. 

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  Id.  

The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

For the period from December 4, 2003 to July 29, 2007

Turning to the merits of the claim, during VA examination in December 2003, the Veteran complained of numbness and tingling in the toes.  Examination of the extremities revealed good pedal pulses and there was no evidence of atrophy or pedal edema was noted.  The clinical diagnoses included diabetes mellitus, poorly controlled on insulin with neuropathy.  

VA outpatient treatment records dated August 2004 radial and dorsalis pedis pulses were 2+ in both lower extremities.  Capillary refill was brisk and there was no peripheral edema noted and all pulses were present.  Motor strength was described as strong.  See VA outpatient treatment records dated August 29 - 31, 2004.

Private hospital summary dated in September 2005 shows the Veteran was admitted for chest pain and left arm weakness.  Neurological examination revealed reflexes were symmetrical and toes were downgoing bilaterally.  There was no peripheral edema and no clubbing, cyanosis, edema or calf tenderness in either extremity.  Pedal pulses were normal and sensation was intact to monofilament.

During VA Examination in January 2007, sensory examination of the lower extremities was within normal limits.  Detailed reflex examination revealed knee and ankle flexion were 1+ bilaterally and plantar flexion was normal.  There was no muscle atrophy or abnormal muscle tone or bulk.  There were no tremors, tics or other abnormal movements and no joint functions were affected.  The examiner noted the Veteran was not able to tolerate needless for NCS test and could not tolerate electrical stimulation for EMG.  The diagnosis was no peripheral neuropathy.  

Therefore, the Board is of the opinion that December 4, 2003 to July 29, 2007, the objective findings and the Veteran's subjective complaints are contemplated by the assigned noncompensable ratings, and that compensable ratings are not warranted. 

For the period from July 30, 2007 to September 12, 2012

For the period from July 30, 2007 to September 12, 2012, the Veteran's diabetic neuropathy of right and left lower extremities has been rated as 10 percent disabling for mild incomplete paralysis of the sciatic nerve.  

When examined by VA in July 2007, the Veteran's lower extremities were normal with the exception of decreased posterior tibial pulse and decreased vibratory sensation in the feet.  Deep tendon reflexes showed patellar reflex 1+and no Achilles reflex on the right.  On the left, patellar and Achilles reflexes were 1+.  The clinical impression was diabetes mellitus with neurological disease.  

During VA examination for peripheral nerves in April 2009, the Veteran complained of numbness, tingling and painful paresthesia in both feet that had spread out to his ankles.  He complained of decreased sensation to light touch in the toes and bottoms of feet.  On examination there was no peripheral edema and the peripheral pulses were normal.  The Veteran had normal muscle strength and tone in both lower extremities.  There was no evidence of atrophy, fasciculations, tremor or other involuntary movements.  The Veteran had diminished deep tendon reflexes in the lower extremities.  Deep tendon reflexes were 1+ and there was diminished light touch, pinprick and vibration, distally in the lower extremities.  The clinical impression was mild peripheral neuropathy of the lower extremities.  

The remaining records during this timeframe show that in general there was no clubbing, cyanosis, or edema and pedal pulses were palpable, and CFT (capillary refill time) was immediate to all digits and there was no erythema or edema noted.  Light touch and protective sensation were intact and pedis pulses were 2+ and symmetric.  

Applying the regulations to the facts in the case, the Board finds that from July 30, 2007 to September 12, 2012, the criteria for a rating in excess of 10 percent were not met.  The record during this timeframe largely reflects that sensory function of the lower extremities was impaired, but not absent.  With the exception of diminished reflexes, there was no evidence of muscle spasm, muscle atrophy, paralysis or foot drop that would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the sciatic nerve.  Moreover, the VA examiner in 2009 specifically provided a diagnosis of mild peripheral neuropathy.  Given the evidence as outlined above, the Board finds that the current 10 percent rating adequately reflects the Veteran's impairment from peripheral neuropathy during this portion of the appeal period. 

Therefore, the Board is of the opinion that July 30, 2007 to September 12, 2012, the objective findings and the Veteran's subjective complaints are contemplated by the assigned 10 percent ratings, and that higher ratings are not warranted. 

For the period since September 13, 2012

Likewise since September 13, 2012, the criteria for ratings in excess of 20 percent have not been met.  During VA examination in September 2012, the Veteran had 4/5 strength in both lower extremities, but no muscle atrophy.  Deep tendon reflexes were normal at 2+.  The examiner noted the Veteran had moderate muscle weakness in both lower extremities.  The Veteran's functioning was not so diminished that he would be equally served by amputation with prosthesis.  

The subsequent treatment records dated since September 2012 do not indicate a worsening in symptoms to warrant higher evaluations for his peripheral neuropathy.  There are no other specific findings of increased muscle weakness, atrophy, or limitations with respect to either lower extremity.  

Indeed, as is illustrated by the objective findings during this timeframe, the Veteran's lower extremity neuropathy cannot be properly described as moderately severe in degree.  The Veteran has no significant deficits in muscle strength.  Motor examination did not disclose any wasting in the lower extremities  and there was no evidence of muscle spasm, paralysis or foot drop.  Use and control of the lower extremities are primarily intact, and hence assignment of a higher evaluation based on a finding of moderately severe incomplete paralysis is not appropriate.  Therefore, the evidence of record does not indicate that the lower extremity neuropathy is more than moderate. 

Therefore, the Board is of the opinion that since September 13, 2012, the objective findings and the Veteran's subjective complaints are contemplated by the assigned 20 percent ratings, and that higher ratings are not warranted. 


E.  Degenerative Joint Disease of the Right and Left Fifth Metacarpals

The Veteran's service-connected degenerative joint disease of the right and left fifth metacarpals are currently rated as noncompensably disabling.  He contends that these disabilities are more severe than the current noncompensable evaluation reflects.  

The regulations provide that any limitation of motion of the little finger will be assigned a 0 percent or noncompensable evaluation.  38 C.F.R. § 4.71a, DC 5230.  This is the maximum rating allowable.  

Under DC 5227, a noncompensable rating is warranted for unfavorable or favorable ankylosis of the ring or little finger on the major or minor hand.  38 C.F.R. § 4.71a.  There is no higher disability evaluation available under this diagnostic code.  When evaluating ankylosis of the little finger, the Board may consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with the overall function of the hand.  Id., at Note.

Under DC 5156, a 10 percent evaluation is assigned for amputation of the little finger, without metacarpal resection, at the PIP joint or proximal thereto.  38 C.F.R. § 4.71a , DC 5156.


In connection with the Veteran's most recent claim for increase is a July 2012 which shows the Veteran complained of daily flare-ups of pain.  Examination revealed a gap between the fingertips and the primal transverse crease of the palm of less than 1 inch (2.5 cm).  There was no objective evidence of painful motion, but there was functional loss/impairment of the fingers and additional limitation of range of motion after repetitive use.  There was less movement than normal of the little finger.  There was evidence of tenderness/pain to palpation, but no ankylosis.  Hand grip was weak at 1/5.  However, the functioning is not so diminished that amputation with prosthesis would equally served the Veteran.  X-rays revealed arthritis of the hands.  X-rays showed no significant arthritic changes were identified.  

Arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis.  Degenerative arthritis when established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved.  38 C.F.R. § 4.71a, DCs 5003 and 5010.

When limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003.  Id.  In the absence of limitation of motion, a 10 percent rating will be applied with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.  A 20 percent rating will be applied with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations.  Id. 

Taking into account the medical evidence, the Board finds that a compensable evaluation is not warranted.  There is no objective indication that the Veteran has sought or received any regular treatment for his right and left fifth finger disabilities.  Moreover the few clinical findings of record show the Veteran retained some level of finger motion and function.  There are no significant abnormalities associated including muscle or nerve impairment.  There is also no indication that the right or left fifth finger affects the other digits of the hands or that it interferes with the overall function of the hand itself.  

In addition, although the Veteran's chronic pain has been duly noted, DC 5230 would not provide for a compensable rating for functional loss since the maximum allowable rating under this code is 0 percent.  See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).  Accordingly, there is no basis to assign a compensable rating.  38 C.F.R. § 4.71a, DC 5230. 

The Board also finds that no other diagnostic code would afford the Veteran a compensable disability evaluation.  Under DC 5227, unfavorable or favorable ankylosis of the ring finger of the major or minor hand warrants a noncompensable rating.  In the absence of ankylosis, this diagnostic code does not apply.  

The only possible increased rating under DC 5010 is for X-ray evidence of arthritis involving 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations.  However, the medical evidence fails to show that multiple minor joints are affected by arthritis.  As such a 10 percent evaluation is not warranted under this diagnostic code.  38 C.F.R. § 4.71a . 

The Board has considered the Veteran's contentions regarding his symptoms.  However, as the objective evidence does not otherwise substantiate his subjective complaints, his assertions alone do not suffice to assign any other higher or separate rating for his service-connected right and left fifth finger disabilities.  

Therefore, the Board is of the opinion that the objective findings and the Veteran's subjective complaints are contemplated by the assigned noncompensable ratings, and that higher ratings are not warranted. 

F.  Heart Disease

The Veteran's heart disease is rated 30 percent rating disabling from January 17, 1990 to August 30, 2004;  as 60 percent rating from August 31, 2004 to June 28, 2012; and as 100 percent disabling from June 29, 2012.

Under DC 7005 arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease.  Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling.  38 C.F.R. § 4.104.

Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent, is rated 60 percent disabling.  Id. 

Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent, is rated 100 percent disabling.  Id. 

One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  Note 2, 38 C.F.R. § 4.104.

For the period from January 17, 1990 to August 30, 2004

Relevant evidence during this timeframe includes a November 1990 VA examination report which shows that the Veteran complained of chest pain with exertion that was not associated with shortness of breath, nausea, or vomiting and was promptly relieved with nitroglycerin.  On examination apical impulse was in 5th space internal to MCL (midclavicular line).  There was no murmur, gallop or rub.  Peripheral pulses were good.  The clinical impression was stable angina pectoris.  

VA outpatient treatment records dated between 1992 and 2003 show continued evaluation for chest pain due to angina and hypertension.  In general the Veteran's heart had regular rhythm and rate.  These records include a November 2001 stress test that was normal and a left ventricular ejection fraction (LVEF) of 65 percent.  Other VA treatment records dated in show an LVEF of 60 percent and 52 percent.  See VA outpatient treatment records dated in June 2003, August 2003, and October 2003.  There was mild left atrial dilatation, which a treating physician noted had been present since June 2003.  See VA outpatient treatment record dated in October 2004.

During VA examination of the Veteran's diabetes in December 2003, the Veteran had normal heart sounds.  A resting electrocardiogram was negative for ischemia.  There were no significant arrhythmias and no specific cardiac symptoms were seen.  There was no left ventricular dilatation and LVEF was 65 percent.  

The remaining records during this timeframe do not indicate a worsening in symptoms to warrant a higher evaluation for heart disease.  There are no other specific findings of increased muscle weakness, atrophy, or limitations with respect to either lower extremity.  

Applying the regulations to the objective findings during this timeframe, the Board finds that the criteria for disability ratings in excess of 30 percent are not met.  
The Veteran's LVEF percentages during that period were 65, 60, and 52, and there is no METs data for this period.  Given that there was some indication of mild left atrial dilatation, the Board concludes  the 30 percent disability rating assigned is proper for the period in question.  A higher 60 percent rating is not warranted, as there is no indication of an LVEF of 30 to 50 percent, or physical exertion limited to 5 METs or less.  There is also no indication that the Veteran experienced any congestive heart failure during this period.

Therefore, the Board is of the opinion that the objective findings and the Veteran's subjective complaints are contemplated by the assigned 30 percent disability rating, and that a higher rating is are not warranted. 

For the period from August 31, 2004 to June 28, 2012

VA treatment records dated in late August 2004 show treatment for typical angina pain symptoms relieved by nitroglycerin.  A cardiac stress test showed no obstruction of decreased perfusion and ejection fraction was 49 percent.  See VA outpatient treatment records dated August 29-31, 2004.

Additional records dated in October 2004 reflect minimally depressed to normal left ventricular function of 49 percent.  The examiner noted there had been an internal decrease of the ejection fraction when compared to the prior value of 65 percent.  There was also mild left atrial dilatation, which the treating physician noted had been present since June 2003.

Also of record is a September 2005 private hospital summary which shows the Veteran had been admitted for chest pain and left arm weakness.  Chest X-rays showed no significant infiltrated or effusion.  Electrocardiogram showed normal sinus rhythm, left axis deviation, and old septal infarct.  Cardiac enzymes were negative.  The heart was S1 and S2 regular without murmur or gallop.  There was no JVD or peripheral edema.  There was no clubbing, cyanosis, or edema in any extremity.  

VA treatment records dated between 2006 and 2009.  In March 2006, the Veteran was seen with complaints of progressive shortness of breath, as well as bilateral ankle swelling.  He was diagnosed with a likely congestive heart failure exacerbation.  Additional records dated in April 2006 reflect an LVEF of 45 to 60 percent.  A VA stress test in April 2007 was suggestive, but not diagnostic for ischemia and significant arrhythmias were observed.  In June 2007 cardiac catheterization showed 50-60 percent proximal plaque, luminal irregularities, but no occlusive disease.  There was ejection fraction of 48 percent along with left ventricle hypertrophy.  There was no mitral regurgitation.  A January 2009 VA record reflects an LVEF of 45 percent, but that assessment was complicated by limited windows and heart rate variability.  An X-ray showed no evidence of congestive heart failure.  

During VA general medical examination in April 2009, the Veteran's long history of recurrent angina chest pain requiring sublingual nitroglycerin was noted.  The examiner also noted last adenosine stress test in 2007 and last LH cath in June 2008 showed mild coronary artery disease.  An echocardiogram from March 2007 showed normal LVEF.  Hyperdynamic systolic function LVEF of 65 percent and grade I diastolic dysfunction with normal filling pressures.  On pulmonary examination the Veteran had dyspnea on minimal exertion.  Cardiovascular examination was negative except for Class I heart disease.  

Private treatment records dated in 2011 show the Veteran was hospitalized for shortness of breath secondary to congestive heart failure exacerbation.  His history of coronary artery disease and cardiopulmonary arrest in December 2010 was noted.  An echocardiogram showed normal left ventricular chamber size and contraction.  LVEF was 55 percent.  The clinical impression was mild to moderate concentric left ventricular hypertrophy and mild left atrial enlargement.  A July 2011 stress test showed a fixed perfusion defect within the inferolateral wall of the left ventricle.  There was no evidence of left ventricular ischemia and no reversible defect.  There was normal LVEF of 79 percent and normal left ventricular wall motion.  

Based on this record, the Board finds that entitlement to a higher evaluation for the Veteran's heart disease is not warranted.  He is not shown to meet the schedular criteria for the next higher 100 percent evaluation.  The Veteran's LVEF percentages during this period range from were 45 to 69, and there is no METs data for this period.  There were two episodes of congestive heart failure one in 2006 and another in 2011.  There was no evidence of syncope or left ventricular dysfunction with an ejection fraction of less than 30 percent.  In the absence of such clinical findings, an evaluation in excess of the currently assigned 60 percent evaluation is not established. 

During VA examination in June 2012, the Veteran's complaints of continued angina, and intermittent chest pain remained unchanged.  There is evidence of cardiac hypertrophy as documented by echocardiogram and a recent EKG revealed an anterior infarct of undetermined age in the right superior axis deviation.  Chest X-ray was normal and LVEF was 60-65 percent.  Interview-based METs testing revealed dyspnea and angina at 1-3 METS (consistent with activities such as eating, dressing, taking a shower, slow walking (2mph) for 1-2 blocks.  The examiner noted that 50 percent of the METs level limitation was due to the Veteran's heart condition.  Other noncardiac medical conditions limiting the METs level included painful arthritis of both knees of 1-3.  The Veteran reported difficulty walking, using a wheel chair for majority of the day, though sometimes for short periods he used a walker.  He was not able to dress, bathe, or cook for himself and was living in a nursing home.  The clinical impression was cardiac arrest associated with mild anoxic brain injury.  

Therefore, the Board is of the opinion that the objective findings and the Veteran's subjective complaints are contemplated by the assigned 60 percent disability rating, and that a higher rating is are not warranted. 


G.  PTSD

The Veteran's PTSD is currently rated as 70 percent disabling under DC 9411, effective September 22, 2003.  

Under the General Rating Formula for Mental Disorders, a 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  38 C.F.R. § 4.130, DC 9411.

A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  Id.  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

In evaluating the severity of the Veteran's PTSD, the Board is aware that "it is not the symptoms, but their effects, that determine the level of impairment."  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Thus, the Board must consider the actual level of occupational and social impairment caused by the Veteran's generalized anxiety disorder throughout the pendency of his claim.  Upon review of the evidence, the Board finds that the PTSD has increased in severity during the appeal period, as evidenced by the exacerbation in symptoms documented during VA examination in June 2012 and some decrease in the Veteran's overall level of functioning.

Notably, there are clinical findings contained in VA examination reports and VA treatment records that lend some support to an award of a 100 percent disability rating.  In fact, the July 2012 VA examination report indicates that the Veteran's psychiatric symptoms were such that he was unable to maintain employment.  The examiner noted that the Veteran's level of occupational and social impairment was most consistent with total occupational and social impairment.  The Veteran was considered to have severe PTSD and was not employable.  

In addition, the Board notes that the Veteran's GAF was assessed as 40, which represents some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family and is unable to work).  Such a GAF score suggests a greater level of impairment than is contemplated by the current 70 percent rating. 

Although the Veteran is able to manage his funds, communicate with the examiner effectively, is not disoriented, delusional, homicidal, suicidal, and has no trouble remembering names of close family, the examiner found him unable to work due to the service-connected PTSD.  The examiner made clear that the Veteran had total occupational impairment with significant social impairment at the time of the July 2012 examination.  Total occupational and social impairment warrants the assignment of a 100 percent rating under DC 9411.  

Resolving all doubt in the Veteran's favor, the Board finds that the Veteran's PTSD more nearly approximates a 100 percent disabling rating from September 22, 2003. 


Additional (Including Extraschedular) Considerations and Conclusion

The Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1), which stipulate that an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards.  Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

The schedular evaluation in this case is not inadequate.  The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards, and the Board similarly finds no such circumstances.  As discussed above, there are higher ratings available for the Veteran's service-connected disabilities, but the required manifestations have not been shown in this case.  Moreover, the VA examinations are void of any finding of exceptional symptomatology beyond that contemplated by the schedule of rating.  In view of the fact that the Veteran has been in receipt of a total disability rating since September 2003, the Board is aware that the Veteran's symptomatology adversely impacts his employability.  However, there ratings herein upheld or assigned take into considerations average earnings capacity and are specifically contemplated by the ratings currently assigned.  Accordingly, 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).  

It is not the Board's intent, in its discussion of the merits of this case, to in any way trivialize the severity of the Veteran's complaints.  The Board realizes that he may genuinely believe that the severity of his various service-connected disabilities merit higher ratings and he is competent to describe readily visible and identifiable symptoms.  However the objective evidence does not otherwise substantiate the subjective complaints, therefore his assertions do not suffice to assign higher ratings.  In other words, there is no means to increase the disability rating based on the medical evidence currently of record, especially because no other codes of the rating schedule provide a basis for the application of a higher ratings.  

Consequently, the criteria for the assignment of higher disability ratings are not met.  The Board has reviewed the claims mindful of the guidance of Fenderson, supra.  The current levels of disability shown are encompassed by the current ratings assigned, and, with due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted for any disability for any portion of the time period under consideration.  There is no basis for the assignment of further staged ratings.  

V. Law and Analysis - Effective Dates

In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).

There are also some exceptions to the regulations set forth in 38 C.F.R. § 3.400.  First, if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue.  Moreover, if a claim is reviewed, upon the Veteran's request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff'd 106 F.3d 1577 (Fed. Cir. 1997).

A second exception to the regulations regarding effective dates for disability compensation involves those Veterans who qualify as eligible under 38 C.F.R. § 3.816.  See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989).  Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a "covered herbicide disease."  See 38 C.F.R. § 3.816(b).

The Board notes that because service connection for diabetes mellitus and heart disease were granted based on the Veteran's exposure to toxic herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as is contemplated under 38 C.F.R. § 3.816(b).

Under this section, if VA denied compensation for the a covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the date VA received the claim on which the prior denial was based or the date the disability arose, whichever is later.  If a veteran's claim for disability compensation for the covered herbicide disease was either (1) pending before VA on May 3, 1989, or (2) was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the date such claim was received by VA or the date the disability arose, whichever is later.  38 C.F.R. § 3.816.  If neither of these conditions is met, then the effective date will be determined under 38 C.F.R. §§ 3.114 and 3.400. 

A TDIU claim is one for increased compensation, and the effective date rules for increased compensation therefore apply to a TDIU claim.  See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Hurd v. West, 13 Vet. App. 449 (2000).  The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sep. 23, 1998).

In addition, 38 C.F.R. § 3.401(a)(1) provides that awards of aid and attendance or housebound benefits, will be effective except as provided in § 3.400(o)(2), the date of receipt of claim or date entitlement arose, whichever is later.  However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established.

A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.  In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

In this regard, the law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101 (West 2002); Jones  v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") (emphasis added).  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition.  KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). 


A.  Effective date prior to May 4, 1995 for Diabetes Mellitus 

The Veteran contends that an effective date earlier than May 4, 1995, is warranted for the grant of service connection for diabetes mellitus.  

The basic facts in this case are not in dispute.  The Veteran was discharged from service in January 1968.  He filed an original claim for service connection for diabetes mellitus on April 20, 2001.  In March 2003, the RO granted service connection for diabetes mellitus and a 20 percent disability rating was assigned, effective April 20, 2001, the date of receipt of the claim.  

In March 2012, the RO undertook a special review of the Veteran's claims file under Nehmer.  Based on this review, the RO accepted the Veteran's claim for glaucoma as the date his formal claim for diabetes for Nehmer purposes and assigned an effective of May 4, 1995.  Although in that claim the Veteran did not specifically mention diabetes mellitus, the RO noted that treatment records dated in 1994, that were submitted in support of the glaucoma claim, suggested a diagnosis of diabetes.  Diabetes mellitus, on the other hand, was not added as a disease presumed related to toxic herbicide exposure until July 9, 2001.  See 66 Fed. Reg. 23166 (May 8, 2001).  As his claim was submitted after May 3, 1989, but before July 9, 2001, the Board will first consider whether this disorder actually arose before or after he submitted his claim.  

The evidence indicates that VA outpatient treatment records dated in December 1994 show the Veteran had a history of increased blood sugars and was advised of basic diabetic diet concepts.  However there was no actual diagnosis of diabetes mellitus.  Later records dated in March 1998 show the Veteran had been diagnosed and prescribed medication for diabetes.  This report is the first competent medical evidence of diabetes mellitus.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (the threshold requirement for service connection to be granted is competent medical evidence of the current existence of a claimed disorder).  In the absence of proof of a present disability, there can be no valid claim.  See 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, 143- 44 (1992).  While, the Board does not necessarily dispute that the Veteran may have experienced diabetes symptomatology prior to the assigned effective date of service connection, this treatment record represents the first evidence of record sufficient to support a grant of service connection.  

Therefore according to the applicable regulation, the Veteran's actual entitlement to service connection first arose when the record established a diagnosis and treatment for diabetes mellitus in March 1998.  38 C.F.R. § 3.381.  Nevertheless, the RO assigned the Veteran the benefit of the earlier date, in this instance, May 4, 1995, which was considered to be the date of receipt of the claim.  Thus, the Veteran has already received an assigned effective date more generous than what the regulations allow.  The Board will not disturb the RO's determination in this regard.  

The Board concludes that the effective date the Veteran's service-connected diabetes mellitus is May 4, 1995, and his claim for an earlier effective date is denied.


B.  Effective date prior to January 17, 1990 for Heart Disease

The Veteran contends that an effective date earlier than January 17, 1990, is warranted for the grant of service connection for heart disease.  

In the interest of providing procedural background pertinent to the claim, the Board notes that the Veteran's claim for service connection for heart disease was denied by the RO in November 1966, and again in January 1976.  The Veteran appealed the decision and the Board affirmed the denial in December 1977.  The Veteran attempted to reopen the claim and the RO eventually denied the claim for a heart disorder in an August 1994 rating decision.  The Veteran failed to perfect his appeal of that decision and it became final. 

The Veteran did not thereafter file a claim to reopen this issue until September 22, 2003.  In April 2010, the Board found that new and material evidence had been submitted sufficient to reopen the claim and remanded the issue for further development and readjudication.  During the pendency of the claim, on August 31, 2010, VA amended 38 C.F.R. § 3.309(e), adding ischemic heart disease to include coronary artery disease to the list of diseases presumed to be service connected due to exposure to Agent Orange in Vietnam during the Vietnam era. 

In March 2013, the RO granted service connection for heart disease and assigned an effective of January 17, 1990, the date of receipt of the Veteran's claim for nonservice connected pension for disabilities including heart disease, which was accepted as an informal claim.  The Veteran disagreed with this determination and initiated this appeal.

However, the effect of the finality of the December 1977 Board decision precludes an award of an effective date prior to that denial.  Correspondingly, any earlier RO decisions that denied service connection for a heart disorder and which predates the December 1977 Board decision are not subject to attack on any basis, because they have been "subsumed" by the December 1977 Board decision (when the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the Board's decision).  See 38 C.F.R. § 20.1104. An unappealed decision of the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error (CUE).  38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. 

The Board notes that while the Veteran has not offered a proposed effective date, he presumably argues that an earlier effective date is assignable because he was initially evaluated for chest pain during military service.  However he has not argued that the Board erred in its December 1977 decision.  Under VA regulations, the Board may initiate a review to determine whether CUE exists with a prior Board decision, on its own motion, or by a party to that decision.  38 C.F.R. § 20.1400.  The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged CUE, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.  38 C.F.R. § 20.1404.  Accordingly, the Board does not construe this statement as a motion for the Board to consider CUE with the December 1977 Board decision. 

Therefore the next question is whether the Veteran submitted an informal claim of entitlement to service connection for a heart disorder at any time after the December 1977 Board decision but prior to the current January 17, 1990 effective date.  

In this case, the first communication received from the Veteran after the December 1977 Board decision was a statement received on November 22, 1983, which the Board finds was a claim for benefits.  However following the submission of that statement, the RO advised the Veteran in a February 1984 letter denial that he needed to submit new and material evidence.  The Veteran did not appeal the decision and it became final.  38 C.F.R. § 20.1103.  See April 2010 Board Decision.  

The first communication received from the Veteran after February 1984 is the Veteran's claim for non-service connected pension benefits received on January17, 1990.

Applying the relevant law and regulations cited above to the facts of this case, the Board finds that because the February 1984 RO denial is final, the claim upon which that decision was based cannot serve as the basis for assignment of an effective date for a subsequent award of service connection.  Since the currently assigned effective date of January 17, 1990, represents the date the Veteran filed his claim for service connection for heart disease following the prior final denial of that claim, there simply is no legal authority to assign an earlier effective date, (as indicated above, the effective date of a reopened claim is the date of the claim or the date entitlement arose, whichever is later).  See 38 C.F.R. § 3.400(q)(1)(ii).  Hence, the claim for that benefit must be denied. 

As note previously, the Veteran is a "Nehmer class member" in that he is a veteran with service in the Republic of Vietnam who has a diagnosed "covered herbicide disease" (i.e., coronary artery disease).  However, the Veteran is not entitled to an earlier effective date in this case under these regulations.  

Here, the RO accepted the Veteran's January 17, 1990 pension claim as the date his formal claim for service connection.  Ischemic heart disease was included as a presumptive Agent Orange disease under 38 C.F.R. § 3.309(e) , which was made effective by VA as of August 31, 2010.  As his claim was submitted after May 3, 1989, but before August 31, 2010, the Board will first consider whether this disorder actually arose before or after he submitted his claim.

The evidence indicates that the Veteran's heart disease was indeed apparent before he submitted his January 1990 claim.  Specifically, a VA hospital summary dated in June 1975 shows that the Veteran underwent cardiac catheterization and coronary angiogram which revealed spasm of the proximal part of the right coronary artery.  The diagnosis at discharge was atypical chest pain, possibly secondary to spasm of the coronary vessels.  So there is indeed evidence that establishes that the heart disease was identified prior to January 1990.  However even as a "Nehmer class veteran," the earliest effective date the Veteran is eligible for is the date of his claim and the Nehmer rule does not result in a greater benefit to him.  See 38 C.F.R. § 3.816.

The Board concludes that the effective date the Veteran's service-connected heart disease is January 17, 1990, and his claim for an earlier effective date is denied.


C.  Effective date prior to September 22, 2003 for PTSD 

The Veteran contends that an effective date earlier than September 22, 2003, is warranted for the grant of service connection for PTSD.  

In this case, service connection was ultimately granted based on the Veteran's specific request to reopen his claim for service connection for PTSD received on September 22, 2003.  Upon careful review of the pertinent evidence of record, the Board finds that the preponderance of the evidence is against an effective date earlier than September 22, 2003, for the following reasons.  

The Veteran's claim for service connection for PTSD was denied by the Board in September 1999.  This decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.1100 20.1105.  

However, the effect of the finality of the September 1999 Board decision precludes an award of an effective date prior to that denial.  Correspondingly, any earlier RO decisions that denied service connection for a psychiatric disorder and which predate the September 1999 Board decision are not subject to attack on any basis, because they have been "subsumed" by the September 1999 Board decision (when the Board affirms a determination of the agency of original jurisdiction, such determination is subsumed by the Board's decision).  See 38 C.F.R. § 20.1104. An unappealed decision of the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error (CUE).  38 U.S.C.A. § 7111; 38 C.F.R. § 20.1400. 

Under VA regulations, the Board may initiate a review to determine whether CUE exists with a prior Board decision, on its own motion, or by a party to that decision.  38 C.F.R. § 20.1400.  The motion to review a prior final Board decision on the basis of CUE must set forth clearly and specifically the alleged CUE, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.  38 C.F.R. § 20.1404.  However the Veteran has not argued that the Board erred in its September 1999 decision.  Accordingly, there is no motion for the Board to consider CUE with the September 1999 Board decision. 

The Veteran did not thereafter file a claim to reopen this issue until September 22, 2003.  In April 2010, the Board found that new and material evidence had been submitted.  In a November 2012 decision, the RO granted service connection for PTSD, assigning a 70 percent disability rating, effective September 22, 2003, the date of receipt of the Veteran's reopened claim.  The Veteran disagreed with the effective date assigned.  

Applying the relevant law and regulations cited above to the facts of this case, the Board finds that, because the September 1999 Board denial is final and not subject to CUE, the claim upon which that decision was based cannot serve as the basis for assignment of an effective date for a subsequent award of service connection.  As the currently assigned effective date of September 22, 2003 represents the earliest date of the RO's receipt of notice of the Veteran's most recent intent to reopen his PTSD claim (following the last final denial), there simply is no legal authority to assign an earlier effective date.  [As indicated above, the effective date of a reopened claim is the date of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(1)(ii) (2013).]  The record is devoid of any document filed between the date of final resolution of the claim and the September 2003 application to reopen that can be construed as any earlier received application to reopen the claim.

With all due respect for the Veteran's belief in the validity of his claim, and after considering the totality of the evidence of record (including his contentions), the Board must find against the issue on appeal.  The Board is constrained by the law and regulations described above governing the establishment of effective dates for the award of compensation.  38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2013).  As discussed herein, the preponderance of the evidence weighs against the Veteran's earlier effective date claim, and his appeal of this issue must be denied.  38 U.S.C.A. § 5107(b) (West 2002).


D.  Effective date prior to September 22, 2003 for TDIU 

The Veteran is seeking an effective date earlier than September 22, 2003 for the grant of TDIU.  

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. 

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.  Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

In Van Hoose v. Brown, 4 Vet. App. 361 (1993), the Court noted that the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  See 38 C.F.R. § 4.16(a).  

When the percentage requirements for consideration for an award of a TDIU are not met, entitlement to benefits on an extra-schedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background, including his or her employment and educational history.  38 C.F.R. § 4.16(b) (2012).  The Board does not have the authority to assign a TDIU pursuant to 38 C.F.R. § 4.16(b) in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but may not be given to his age or to any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The Veteran therefore does not meet the above-described percentage requirements for consideration for award of TDIU.  Failure to satisfy the percentage standards is not, however, an absolute bar to a grant of a TDIU.  If the record demonstrates that the Veteran is unemployable by reason of service-connected disabilities but otherwise fails to meet the percentage standards, the case must be submitted to the Director of the VA Compensation and Pension Service for extra-schedular consideration.  38 C.F.R. § 4.16(b) (2013).

The authority to assign TDIU ratings pursuant to 38 C.F.R. § 4.16(b) has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation and Pension Service in the first instance.  38 C.F.R. § 4.16(b) (2013).  The factors to be considered the Veteran's service-connected disabilities, employment history, educational and vocational background, and all other factors having a bearing on the issue.  Id.  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 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).  Consideration may not be given to the impairment caused by non service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.

The Veteran first filed his claim for TDIU in October 2008.  (Regardless of the date of claim for TDIU, the award of that benefit may not be made effective prior to the date entitlement is shown.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400).  He seeks an effective date earlier than September 22, 2003, for the award of a TDIU, contending that he stopped working full time in 1987 due to arthritis in both hands and knees, heart disease, and PTSD.  See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in January 2009.  However the Board finds the information of the Veteran's last date of employment to be inconsistent with record, as other evidence in the file shows the Veteran continued to work until at least June 1994.  See statement from K.E. Mathew. M.D. dated in June 1994.

A historical review of the claims file shows that prior to September 22, 2003, the Veteran's combined service-connected disability rating, to include the bilateral factor was 40 percent based on heart disease rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling, left inguinal hernia, tinea versicolor, status post right fifth metacarpal fracture, and status post left fifth metacarpal fracture, each rated as noncompensable.

Effective September 22, 2003, the RO granted service connection for PTSD and assigned a 70 percent disability rating, and by doing so, the combined disability rating was increased from 40 percent to 80 percent, effective September 22, 2003.  

A TDIU was granted with an effective date of September 22, 2003, (the effective date of the grant of service connection for PTSD) since it was at that point the Veteran met the scheduler requirements in that he had one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. § 4.16(a).  

The failure to satisfy the schedular criteria of 38 CFR 4.16(a), however does not necessarily preclude assignment of TDIU benefits prior to September 22, 2003, in that such benefits can be assigned on an extraschedular basis.  The Board is, however, precluded from granting a TDIU under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director of Compensation and Pension Service.  When the Board finds that a case is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director of the Compensation and Pension Service, but the Board may not grant a total rating in the first instance.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).

The Board will undertake an analysis as to whether entitlement to TDIU on an extraschedular basis was warranted prior to September 22, 2003.  In addressing the earlier effective date concerns, it is clear that the Veteran is not now able to work.  The issue is when that degree of disability commenced for VA compensation purposes. 

At this juncture, the Board notes that the level of disability created by the pertinent service-connected disabilities prior to September 22, 2003 as well as their assigned evaluations were discussed at some length above in connection with the increased rating issues.  So, the Board will not repeat the discussion of that symptomatology especially given that the above analysis details the level of such impairment and the appropriate disability ratings to account for such impairment.  The Board does note that the relevant evidentiary record in this case consists of VA and non-VA treatment reports, dated between 1987 and 2003, which in general document continued periodic treatment of the Veteran's various service-connected disabilities by various physicians.  Notably, there are no medical or vocational assessments indicating that the Veteran was unemployable.

Taking into account his education and occupational background, it cannot necessarily be concluded that prior to September 22, 2003, the Veteran was unemployable given the manifestations of his service-connected disabilities.  The service-connected heart disease is productive of a great degree of disability, as indicated by the 30 percent rating assigned.  However, there is no indication in the record that the disability involves factors that are not reflected in the Rating Schedule, or that impair the Veteran's ability to work to a greater degree than recognized.  There is no indication that all employment was beyond his capacity, either in the actual performance or in moving to and from such employment.  

It is also clear that while the Veteran's service-connected diabetes mellitus also had some negative impact on his ability to work, he has submitted no documentary evidence showing any lost time from work.  No VA examiner described the potential impact of the service-connected diabetes on the Veteran's his ability to obtain or maintain employment, he did not specifically conclude that the diabetes actually precluded him from securing or following a substantially gainful occupation.

The Veteran's remaining service-connected disabilities, left inguinal hernia, tinea versicolor and degenerative joint disease of the right and left fifth metacarpals are not significantly disabling from an industrial standpoint.  There is no medical evidence of record which shows the Veteran has sought regular medical treatment for them or that they precluded him from securing or following substantially gainful employment.  

While the Board does not wish to minimize the nature and extent of the Veteran's overall disability, the evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability.  Although they produce significant impairment, the evidence does not reflect gainful employment is precluded solely due to such service-connected disabilities.  The Veteran has not identified or submitted any competent evidence, to include a medical nexus, which demonstrates that his service-connected disabilities alone precluded him from securing and maintaining substantially gainful employment and entitles him to a TDIU.  For all the foregoing reasons, the Board finds that referral of the claim for consideration of entitlement to a TDIU prior to September 22, 2003, is not warranted under 38 C.F.R. § 4.16(b).  

Accordingly, a TDIU is not warranted prior to September 22, 2003.


E.  Effective date prior to September 22, 2003 for DEA 

For the purposes of DEA under 38 U.S.C.A Chapter 35, basic eligibility exists if the Veteran was discharged from service under conditions other than dishonorable and if he has a permanent and total service-connected disability.  38 U.S.C.A. § 3501; 38 C.F.R. § 3.807, 21.3021.  There are other avenues through which basic eligibility may be granted; however, they involve factors not applicable here, e.g., the death of the Veteran or if the Veteran is currently on active duty.  Id. 

In this case, as is discussed more fully above, the Board finds that the Veteran did not meet the criteria for a TDIU prior to September 22, 2003.  Since eligibility for DEA under 38 U.S.C. Chapter 35 is predicated on a finding of permanent total disability, the effective date of such eligibility cannot precede September 22, 2003.  Eligibility for DEA under 38 U.S.C. Chapter 35 is, effectively, derived from the award of a TDIU and, therefore, cannot precede the effective date of the award of a TDIU.  Therefore, the law is dispositive of the issue; and, as such, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


F.  Effective date prior to August 31, 2004 for SMC at the housebound rate 

The Veteran alleges that he is entitled to an effective date prior to August 31, 2004 for the award of special monthly compensation based on housebound status.  

An award of based on housebound status requires that the veteran have a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  This permanently housebound requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).

In the August 2012 rating decision on appeal, the RO granted both a 100 percent evaluation for heart disease and special monthly compensation based on housebound status, both effective as of June 29, 2012.  The reason it granted the special monthly compensation benefit was because the Veteran was now in receipt of a single 100 percent disability rating for service-connected heart disease, and he had an additional disabilities separate and distinct from heart disease that combined to at least 60 percent.  This satisfied the first prong of the criteria necessary for entitlement to special monthly compensation based on housebound status.  See 38 C.F.R. § 3.350(i).  The RO subsequently granted an earlier effective date of August 31, 2004, for the award of special monthly compensation based on housebound status because an earlier effective date of September 22, 2003 was granted for TDIU.  (A 60 percent evaluation for heart disease had been assigned as of August 31, 2004).  

The Board has reviewed the evidence of record and finds that the preponderance of the evidence is against the claim for an effective date earlier than August 31, 2004, for the award of special monthly compensation based on housebound status.  As to the first prong, prior to August 31, 2004, the Veteran did not meet the schedular criteria for special monthly compensation based on housebound status.  While he had TDIU prior to this August 31, 2004, he did not have additional service-connected disabilities that combined to at least 60 percent.  

Rather, his additional disabilities of heart disease (30 percent); diabetes mellitus (20 percent); peripheral neuropathy of the right lower extremity (0 percent); peripheral neuropathy of the left lower extremity (0 percent); left inguinal hernia (0 percent); tinea versicolor (0 percent); status post fracture of the right fifth metacarpal (0 percent) and status post fracture of the left fifth metacarpal (0 percent) combined to a 40 percent evaluation only, see 38 C.F.R. § 4.25, which does not meet the schedular criteria under the first prong for special monthly compensation based on housebound status, see 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). 

The Board notes that the Veteran's 60 percent disability rating for heart disease, effective August 1, 2004 is what brought the Veteran's additional disabilities to the combined rating of 70 percent and allowed special monthly compensation based on housebound status to be awarded.  Thus, the Veteran is not entitled to special monthly compensation based on housebound status based on the schedular criteria requirement prior to August 31, 2004.  Id. 

The Board also finds the preponderance of the evidence is against a finding that the Veteran met the second prong of section 3.350(i), which is evidence showing that the Veteran is permanently housebound by reason of service-connected disability or disabilities prior to August 31, 2004.  In reading through the evidence between September 22, 2003 (when the Veteran was awarded a 70 percent evaluation for PTSD) and August 31, 2004, there is no credible allegation from the Veteran or a credible suggestion from other evidence in the claims file that he was substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities.  VA and private treatment records and VA examination reports show the Veteran was mobile attending hospital visits and undergoing physical examinations.  Additionally, no medical professional made a finding that the Veteran was substantially confined to his home during that time period.  The criteria under the second prong of section 3.350(i) are not met. 

Accordingly, the claim for entitlement to an effective date prior to August 31, 2004, for the grant of special monthly compensation based on housebound status must be denied.


G.  Effective date prior to January 11, 2012 for SMC aid and attendance 

The Veteran alleges that he is entitled to an effective date prior to January 11, 2012 for the award of special monthly compensation based on aid and attendance.  

Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a).  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b) (3). 

Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others.  In making such determinations, consideration is given to such conditions as the following:  Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment.  38 C.F.R. § 3.352(a). 

In Turco v. Brown, 9 Vet. App. 222 (1996), the Court held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present.  The Court added that the particular personal function which the Veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need.

Special monthly compensation is also payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). 

The Veteran filed a claim for SMC in July 2010.  See VA Form 21-0820, Report of General Information, dated July 2010.  He later indicated that he had trouble walking and used a mobility scooter and wheelchair.  See VA Form 21-4138, Statement in Support of Claim, dated in August 2010.  The RO initially denied the claim in a November 2010 rating decision.  The RO also denied entitlement to special monthly compensation based on housebound status.  

In November 2012, the RO granted entitlement to special monthly compensation based on aid and attendance criteria, with an effective date of January 11, 2012 based on the Veteran's admission to a nursing home.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).  The Veteran appealed this rating decision asserting entitlement to an effective date earlier than January 11, 2011 for the assignment of special monthly compensation for aid and attendance.

The evidence of record prior to January 11, 2012, consists of VA and private treatment and hospital records, showing continuing treatment for the effects of the Veteran's service-connected disabilities.  There is no indication from these records that the Veteran was so helpless as to need regular aid and attendance.  Rather it appears that the Veteran that was independent in activities of daily living, including toileting, or that was unable to perform personal hygiene, get dressed by himself, or cook for himself, or that he was not capable of protecting himself from the hazards of his environment. 

Therefore, the medical evidence does not establish that entitlement to special monthly compensation arose prior to the date of the Veteran's admission to a nursing home in January 2012, or demonstrate that it was factually ascertainable within one year prior to the July 2010 claim that the Veteran was in need of aid and attendance of another person.  See 38 C.F.R. §§ 3.400(o)(2), 3.401(a)(1). 

Accordingly, the claim for entitlement to an effective date prior to January 11, 2012, for the grant of special monthly compensation for aid and attendance must be denied.


ORDER

New and material evidence having not been received, the claim to reopen the issue of entitlement to service connection for right knee pain with arthritis is denied.  

New and material evidence having not been received, the claim to reopen the issue of entitlement to service connection for left knee arthritis is denied.  

New and material evidence having been received, the claim to reopen the issue of entitlement to service connection for glaucoma is granted.  

Entitlement to service connection for PFB is denied.

Entitlement to service connection for Zenker's diverticulum (claimed as a throat disorder) to include as secondary to anoxia brain injury due to diabetic nephropathy with hypertension is granted.  

An initial disability rating for diabetes mellitus, type II, in excess of 10 percent from May 4, 1995 to March 3, 1998 and in excess of 20 percent since March 4, 1998 is denied.

An initial disability rating in excess of 30 percent for the period from July 30, 2007 to January 25, 2011, in excess of 60 percent from January 26, 2011 to March 9, 2011, and in excess of 80 percent from March 10, 2011 for diabetic nephropathy with hypertension is denied.  

An initial disability rating in excess of 10 percent from December 21, 2006 for peripheral neuropathy weakness of the right upper extremity, a residual of anoxic encephalopathy (claimed as stroke) and in excess of 40 from September 13, 2012 is denied.

An initial disability rating in excess of 10 percent from December 21, 2006 for peripheral neuropathy weakness of the left upper extremity, a residual of anoxic encephalopathy (claimed as stroke) and in excess of 30 from September 13, 2012 is denied.

An initial compensable disability rating from December 4, 2003 for peripheral neuropathy weakness of the right lower extremity, a residual of anoxic encephalopathy (claimed as stroke), in excess of 10 percent from July 30, 2007, and in excess of 20 from September 13, 2012 is denied.  

An initial compensable disability rating from December 4, 2003 for peripheral neuropathy weakness of the left lower extremity, a residual of anoxic encephalopathy (claimed as stroke), in excess of 10 percent from July 30, 2007, and in excess of 20 from September 13, 2012 is denied.

An initial compensable disability rating for degenerative joint disease of the right 5th metacarpal, status post fracture (claimed as hand problems and arthritis of the hands) is denied. 

An initial compensable disability rating for degenerative joint disease of the left 5th metacarpal, status post fracture (claimed as hand problems and arthritis of the hands) is denied. 

An initial disability rating in excess of 30 percent from January 17, 1990 to August 30, 2004, and in excess of 60 percent from August 31, 2004 for arteriosclerotic heart disease, coronary artery disease, hypertensive heart disease and atypical chest pain, possibly secondary to spasm of the coronary vessels is denied. 

An initial disability rating of 100 percent for PTSD is granted. 

An effective date prior to May 4, 1995 for service connected for diabetes mellitus, type II is denied.

An effective date prior to January 17, 1990 for service connection for arteriosclerotic heart disease with coronary artery disease is denied.

An effective date prior to September 22, 2003 for PTSD is denied.

An effective date prior to September 22, 2003 for TDIU is denied. 

An effective date prior to September 22, 2003 for DEA is denied. 

An effective date prior to August 31, 2004 for entitlement to special monthly compensation at the housebound rate is denied.

An effective date prior to January 11, 2012 for entitlement to special monthly compensation at the aid and attendance rate is denied.  


REMAND

Diabetic Retinopathy

The Veteran is seeking a compensable disability rating for his service-connected diabetic retinopathy.  He asserts, and the medical evidence suggests, that the diabetic retinopathy may have increased in severity.  Of particular significance are VA treatment records which show the Veteran was scheduled for cataract extraction which was delayed due to the extent of his diabetic retinopathy.  See VA outpatient treatment record dated in July 2010.  In addition a November 2010 treatment report shows uncorrected visual acuity of 20/400 on the right and 20/80 on the left.  The clinical impression included cataracts, severe nonproliferative diabetic retinopathy, and primary open angle glaucoma. 

Unfortunately since the last VA examination in July 2007 there is very little evidence in the claims file which adequately describes the nature and extent of the Veteran's retinopathy.  That notwithstanding, the Board also notes that the Veteran is competent to provide evidence as to the severity of his symptoms.  See 38 C.F.R. § 3.159(a)(2).  As there may have been significant changes in his diabetic these disabilities since the previous examination, and to ensure that the Veteran's own complaints are sufficiently considered by a VA examiner, the Board finds that a more contemporaneous examination is needed.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995) (VA examination required in increased rating claim where Veteran asserts condition worsened since most recent VA examination).  

The examination to be conducted on remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent interval medical history since his last VA examination in 2007.  In addition, it appears that the Veteran has eye disability stemming from non-service-connected conditions.  Any such symptomatology should be differentiated from the Veteran's service-connected diabetic retinopathy, if possible. See Mittleider v. West, 11 Vet. App. 181 (1998) (The Court requires that when it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 any reasonable doubt on any issue be resolved in the appellant's favor, and that such signs and symptoms be attributed to the service-connected condition.)

Glaucoma

Also in light of the Board's finding that the previously denied claim for service connection for glaucoma is reopened, the underlying issue must be considered on a de novo basis.  Thus additional evidentiary development is necessary before a decision can be reached on the merits of this issue.  Specifically, the Veteran contends that his glaucoma is caused or made worse by his service-connected diabetes mellitus, and if that is the case, additional medical information should be sought.  

In this case, given the absence of an adequate medical opinion addressing whether a medical nexus exists between the Veteran's glaucoma and his service-connected diabetes mellitus, a VA medical opinion is needed.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability).

Specially adapted housing/special home adaptation grant

In addition, the Board finds that within the above requested VA examination, the examiner should address the specific criteria needed to establish entitlement to specially adapted housing or a special home adaptation grant.  If the examiner performing the eye examination is unable to provide the requested opinion, an additional VA examination should be afforded the Veteran. 

In addition, ongoing pertinent treatment records should be obtained.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent).  

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file copies of previously unprocured records of eye treatment that the Veteran may have received since 2012.  Document the attempts to obtain such records.  If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it.  If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file.  See 38 U.S.C.A. § 5103A(b).  All such available documents should be associated with the Veteran's claims folder, Virtual VA folder, or VBMS folder, as appropriate. 

2.  Thereafter, the veteran should be referred for a VA ophthalmology examination.  The claims folder must be made available to the examiner for review of the case.  A notation to the effect that this record review took place should be included in the report.  The examiner should elicit from the Veteran a detailed history regarding the onset and progression of relevant symptoms, and the examination report should include a discussion of the Veteran's documented medical history.  

Visual acuity testing and visual field testing should be conducted using the Goldmann Perimeter Chart.  All clinical findings should be reported in detail. It is essential that the examiner interpret all graphical representations of visual field testing (i.e., identify the degrees and quadrants where visual loss exists).  The examiner should review the results of any testing prior to completing the report. 

a.  If loss of vision or any other symptomatology is related to the Veteran's service-connected nonproliferative diabetic neuropathy and any of his nonservice-connected disabilities, the examiner should attempt to indicate what disability or percentage of disability is related to his service-connected nonproliferative diabetic neuropathy and what percentage is related to his nonservice-connected disability(ies).  If the symptomatology cannot be separated, the examiner should so state.

b.  The examiner should report the Veteran's overall corrected visual acuity and indicate to what extent the service-connected diabetic retinopathy restricts his visual acuity. 

c.  If the diabetic retinopathy affects the Veteran's eyes in other ways, such as limiting the field of vision, the examiner should describe those limitations in accordance with the appropriate rating criteria. 

With respect to the Veteran's glaucoma, the examiner should address the question of whether it is it at least as likely as not, i.e., a 50 percent probability or greater that the Veteran's glaucoma as well as any other eye disorders shown on current examination--are caused or aggravated by his service-connected diabetes mellitus.  If no causation or aggravation is found, the examiner should specifically indicate so and explain why that is. 

Note: The term "aggravated"  in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

The VA examiner should also review the criteria for awarding specially adapted housing and determine whether disabling residuals which can be attributed to service-connected diabetic retinopathy results in blindness in both eyes, having only light perception.

The basis for the conclusions reached should be stated in full.  If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (he/she does not have the needed knowledge or training).  Merely saying he/she cannot comment will not suffice.  

3.  After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal.  If the benefits sought on appeal remain denied, furnish the Veteran and his attorney an appropriate supplemental statement of the case and give them an appropriate time period in which to respond.  All evidence should be reviewed, to include evidence submitted since the most recent supplemental statement of the case.

The Veteran 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).

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).



______________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs