Citation Nr: 1554091 Decision Date: 12/29/15 Archive Date: 01/07/16 DOCKET NO. 13-24 258 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to service connection for claimed right arm fracture residuals, to include arthritis. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD), claimed as secondary to sleep apnea. 4. Entitlement to service connection for sleep apnea, claimed as secondary to an acquired psychiatric disorder. 5. Entitlement to service connection for an acquired psychiatric disorder. 6. Entitlement to service connection for a right hip disorder. 7. Entitlement to service connection for a low back disorder. 8. Entitlement to service connection for a right leg/knee disorder. 9. Entitlement to service connection for dizziness. 10. Entitlement to service connection for hypertension. REPRESENTATION Appellant (the Veteran) is represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active duty service from December 1964 to November 1967. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions in September 2012 and October 2013 of the RO in Philadelphia, Pennsylvania. The Board has considered whether the appealed rating claim includes a claim of entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009); however, the Veteran has not asserted, and the evidence does not otherwise suggest, that the service-connected diabetes mellitus alone renders him unable to secure and maintain a substantially gainful occupation. As that is currently the only service-connected disability, the Board finds that the issue of TDIU entitlement is not a component of the appealed rating claim. The Veteran submitted additional evidence to the Board in October 2015, after the most recent adjudication of the claim. Under VA law, for all appeals perfected by receipt of a VA Form 9 after February 2, 2013, if pertinent evidence is submitted to either the agency of original jurisdiction or the Board of Veterans' Appeals, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence. See 38 U.S.C.A. § 7105. Here, in argument dated October 21, 2015 and received with the additional evidence, the Veteran's representative requested that the Veteran's "case" should be remanded until claims at the "Veterans Administration" have been properly adjudicated. The unadjudicated claims appear to be a claim of entitlement to service connection for coronary artery disease, first raised in a July 8, 2015 VA Form 21-4138, and the issues of entitlement to service connection for a right hip disorder, a low back disorder, a right leg disorder, dizziness, an acquired psychiatric disorder, and hypertension, which were denied in an October 31, 2013 RO rating decision with which the Veteran has disagreed, but for which a Statement of the Case has not yet been issued. As the issue of entitlement to service connection for coronary artery disease has not been adjudicated by the Agency of Original Jurisdiction, the Board does not have jurisdiction over it and therefore cannot remand it as requested. However, as the claim of entitlement to service connection for coronary artery disease has been raised by the record, it is referred to the RO for appropriate action. See 38 C.F.R. §19.9(b)(2015). The Board finds that the additional evidence submitted in October 2015 is not pertinent to the rating for diabetes mellitus or to the issue of entitlement to service connection for claimed residuals of a right arm fracture. The adjudication of those issues at this time will not result in prejudice either to those issues or to the issues referred or remanded. Therefore, the issues of entitlement to service connection for claimed residuals of a right arm fracture and entitlement to a disability rating in excess of 20 percent for diabetes mellitus will be addressed in this decision. The as yet unperfected appeals of entitlement to service connection for a right hip disorder, a low back disorder, a right leg disorder, dizziness, an acquired psychiatric disorder, and hypertension, and the perfected but inextricably intertwined issues of entitlement to service connection for COPD and sleep apnea, are addressed in the REMAND below and are therein REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's diabetes mellitus has been manifested by the requirement of oral hypoglycemic agents and/or insulin, and regulation of diet, but not the requirement for regulation of activities for control. 2. There was no injury or disease of the right arm in service; arthritis did not become manifest to a degree of 10 percent or more within one year of service separation; no current disability of the right arm is related to service. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 20 percent for diabetes mellitus have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.119, Diagnostic Code 7913 (2015). 2. Claimed right arm fracture residuals were not incurred in service; arthritis is not presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability Rating for Diabetes Mellitus In a January 2006 rating decision, the RO granted service connection for diabetes mellitus and assigned an initial rating of 20 percent under Diagnostic Code 7913, effective August 22, 2005. The current appeal arises from an increased rating claim that was received at the RO on January 27, 2012. The Veteran essentially asserts that a rating in excess of 20 percent is warranted. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria set out under Diagnostic Code 7913 provide a 20 percent rating where diabetes requires insulin and restricted diet, or; oral hypoglycemic agent and restricted diet. A 40 percent rating is available where diabetes requires insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities). A 60 percent rating where the disease requires insulin, a restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating where diabetes requires 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. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. See 38 C.F.R. § 4.119, Diagnostic Code 7913. Diagnostic Code 7913 includes successive rating criteria, whereby the evaluation of each higher rating includes the criteria of each lower rating, such that, if one criterion is not met at any level, a claimant can only be rated at the level that does not require the missing criterion. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (indicating that use of the conjunctive 'and' in a statutory provision meant that all of the conditions listed in the provision must be met). Compare and contrast with Johnson v. Brown, 7 Vet. App. 95 (1994) (holding, instead, that only one disjunctive 'or' requirement must be met in order for an increased rating to be assigned). The Board finds that the words "with" and "plus," as used under Diagnostic Code 7913, are the equivalent of "and," signifying that each of the conditions listed in the provision must be met. The disjunctive "or" separates episodes of ketoacidosis and hypoglycemic reactions signifying that either condition will satisfy that criterion, but that other criteria separated by conjunctives must also be satisfied. As the rating criteria are successive, the determination of entitlement to any rating in excess of 20 percent turns on a finding that the Veteran's diabetes mellitus requires regulation of activities. Here, there is no clinical recommendation of regulation of activities in order to control diabetes mellitus. The report of VA examination in December 2005 reveals a specific finding that there were no reported episodes of hypoglycemic reactions or ketoacidosis, and that, while the Veteran's diabetes required dietary restriction, he was not restricted in strenuous activities. There was no notation of the requirement of insulin at that time. The report of VA examination in November 2011 reveals that the Veteran's diabetes was controlled with oral hypoglycemic agents and a restricted diet. The examiner found that the medical management of the Veteran's diabetes did not require regulation of activities or insulin. The examiner reported no episodes of ketoacidosis or hypoglycemia requiring hospitalization over the previous 12 months. There was also no unintentional weight loss or progressive loss of strength attributable to diabetes mellitus. A July 15, 2009 report of E.W. Cipolla, DO reveals that the Veteran's diabetes was well controlled (VBMS record 02/21/2010). The Board notes that all ratings above 20 percent require not only regulation of activities, but require insulin as well. Only the 20 percent level allows the alternative of oral hypoglycemic agents. Here, as of the November 2011 examination, the Veteran's diabetes did not require either insulin or regulation of activities. However, the Veteran's spouse wrote in June 2012 that he was on insulin shots at that time. The Veteran's spouse is competent to report whether or not he is taking insulin, and this report does not conflict with any contemporaneous medical evidence. However, to the extent the Veteran or his spouse asserts that regulation of activities is required to control his diabetes mellitus, the Board must consider whether these assertions are competent evidence. Generally, lay evidence is competent with regard to matters which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis; however, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (etiology of cancer); 38 C.F.R. § 3.159(a)(2). Here, the Board finds that determining the appropriate treatment and control of diabetes mellitus is not capable of lay observation but requires medical knowledge. Neither the Veteran nor his spouse has related a current medical recommendation of regulation of activities. Indeed, neither has directly addressed the subject. Accordingly, the Board finds that there is no competent evidence of the need for regulation of activities to control diabetes mellitus. Therefore, the criteria for any rating in excess of 20 percent are not met. The Board has considered whether there are complications of diabetes mellitus that should be separately rated. The Veteran has erectile dysfunction which has been related to his diabetes mellitus and is considered service-connected. Under Diagnostic Code 7522, a 20 percent rating is for assignment where there is a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522. Thus, to warrant a 20 percent rating under Diagnostic Code 7522, the Veteran's erectile dysfunction must have caused both (1) a deformity of the penis and (2) the loss of erectile power. See Melson, 1 Vet. App. 334. VA's Adjudication Procedure specifically addresses the application of Diagnostic Code 7522 and directs: "Important: The condition is not compensable in the absence of penile deformity." M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Paragraph 39(a). Here, the evidence does not demonstrate, and the Veteran does not contend, that he has a deformity of the penis. Therefore, the Board finds that the criteria for assignment of a 20 percent rating under Diagnostic Code 7522 are not met. Moreover, as the presence of a deformity is an essential criterion under Diagnostic Code 7522, the Board also finds that the criteria for a 20 percent rating are not more nearly approximated than those for a noncompensable rating. There are no higher or lower ratings assignable under that code. The rating schedule provides no other ratings for such symptomatology. A footnote in Diagnostic Code 7522 indicates the disability is to be reviewed for entitlement to Special Monthly Compensation (SMC) for loss of use of a creative organ under 38 C.F.R. § 3.350(a). SMC is payable if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a). It is VA policy to pay SMC for loss of use of a creative organ whenever a service connected disease causes loss of erectile power, "with or without penile deformity." M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, Paragraph 39(b). Here, the RO has already granted SMC for loss of use of a creative organ, effective August 22, 2005. This encompasses the entire period on appeal. There are no other complications of diabetes mellitus other than the already service-connected erectile dysfunction that would be compensable if separately rated. The December 2005 VA examiner found that erectile dysfunction was the only complication of diabetes mellitus, and that there was no associated visual impairment, cardiovascular disease, or neurologic disease, to include peripheral neuropathy. There were no neurovascular symptoms, no peripheral vascular disease, no nephropathy or skin lesions, no gastrointestinal symptoms, no genitourinary symptoms, and no other conditions that can sometimes be complications of diabetes. The November 2011 VA examiner also found that erectile dysfunction was the only complication of diabetes mellitus, and that conditions such as hypertension, peripheral vascular disease, stroke, skin conditions, eye conditions, and cardiac conditions were not associated with diabetes mellitus either through causation or aggravation. The examiner found that there was no impact of diabetes mellitus on the Veteran's ability to work. In addition, an October 2013 Peripheral Nerves examination found that there was no peripheral sensory neuropathy. The Veteran's spouse has written that the Veteran has sores on his legs which she asserts are related to diabetes. While she is competent to identify sores on the Veteran's legs, relating sores to a disease process such as diabetes is not capable of lay observation but requires medical knowledge. Here, the VA examiners' opinions are the only competent evidence regarding this question. Both the December 2005 and November 2011 examiners have found that there are no skin complications associated with the diabetes mellitus. As the criterion of regulation of activities is not met and as there are no separately ratable complications of diabetes that have not already been rated, the Board concludes that a rating in excess of 20 percent for diabetes mellitus is not warranted. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1) (2015), which provides procedures for referral or assignment of an extraschedular evaluation. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). 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). The VA Compensation and Pension Service is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd 572 F.3d 1366 (Fed. Cir. 2009). Regarding diabetes mellitus, the Board finds that the first Thun element is not satisfied here. The Veteran's service-connected diabetes mellitus is manifested by the requirement of restriction of diet and the requirement of insulin, as well as by associated erectile dysfunction. These signs and symptoms, and their resulting impairment, are fully contemplated by the rating schedule, to include the provisions for SMC. In view of the circumstances, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). Service Connection-Right Arm Fracture Residuals The Veteran is seeking service connection for claimed residuals of a right arm fracture on the basis that such residuals are related to service. The term "service connection" applies to disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Entitlement to service connection requires (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of disease or injury; and (3) medical evidence of a nexus between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. This presumption applies to veterans who served 90 days or more during a period of war or after December 31, 1946. Arthritis is included among the enumerated chronic diseases. However, in order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that one of the enumerated diseases was noted during service or within the presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr, 21 Vet. App. at 307; see also Davidson, 581 F.3d 1316; Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is primarily rated on the basis of limitation of motion. Therefore, the rating provisions addressing limitation of motion of specific joints must be considered in determining whether arthritis is manifest to a degree of 10 percent or more. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Here, the Veteran has never identified a specific joint as being affected by arthritis. The medical evidence does not include a diagnosis of arthritis affecting any joint on the right arm. Therefore, the criteria for application of the presumption of service connection for arthritis are not met. The service treatment records reveal no complaint of or treatment for a right arm injury or disease of any kind. When examined at service separation in November 1967, the Veteran's upper extremities were clinically normal. He was assigned a physical profile (PULHES) rating of "1" for the upper extremities indicating that he possessed a high level of medical fitness. See 9-3(c)(1) Army Regulation 40-501, Change 35; Hanson v. Derwinski, 1 Vet. App. 512 (1991); Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The report of medical history at service separation reveals the Veteran's assertion contemporaneous with service separation that he had no history of, or current, broken bones, arthritis, rheumatism, joint pain, joint deformity, painful shoulder or painful elbow. This report directly contradicts the Veteran's recent assertion, as gleaned from his October 2011 claim, that he fractured his right arm in service. In weighing these conflicting statements, the point in time in which the statement was made is important because a contemporaneous account is less likely to be impacted by distortions of memory. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (noting that, notwithstanding the declarant's intent to speak the truth, statement may lack credibility because of faulty memory). Thus, the contemporaneous nature of the statement of medical history at discharge is significant. Furthermore, because the Veteran was then undergoing medical evaluation, it seems likely that he would report events carefully and accurately. The "medical diagnosis or treatment" exception to hearsay rule (Fed. R. Evid. 803) provides that "statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care." Recourse to the Federal Rules of Evidence is appropriate where they will assist in articulation of the Board of Veterans' Appeals' reasons, see Rucker v. Brown, 10 Vet. App. 67 (1997). The Veteran's recent assertion that he fractured his right arm in service was made in the context of a claim for VA benefits rather than in the limited context of medical treatment. The Board is of course cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting the events of service. Rather, it is the credibility of the Veteran's recent account which the Board finds is lacking. Simply put, the report of medical history at separation from service offers an account which directly contradicts the Veteran's recent assertions that he fractured his right arm in service. The account at service separation is more reliable and convincing than the Veteran's recent assertion that he fractured his right arm in service. The accuracy of the statement at service separation is further bolstered by the fact that it is consistent with the normal clinical findings at service separation. The Veteran's spouse has asserted that the Veteran "broke his arm in Vietnam when he dove under a truck to avoid sniper fire" (see VBMS record 01/18/2012). This is presumably based on the Veteran's description to her as she professed no first-hand knowledge of the asserted injury. In the case of a veteran who engaged in combat with the enemy in a period of war, satisfactory lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). "Satisfactory lay or other evidence" under 38 U.S.C.A. § 1154(b) means "credible evidence." Caluza v. Brown, 7 Vet. App. 498, 510 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). Here, for reasons described above, the Board has found that the Veteran's assertion that he fractured his right arm in the service is directly contradicted by assertions he made at the time and is not credible. As the assertion is not credible, it does not constitute "satisfactory lay or other evidence" and the combat rule does not aid in substantiating the asserted injury or disease in service. As a preponderance of the evidence is against the element of an injury or disease in service, and as there is no current diagnosis of a right arm disorder, to include arthritis, the Board concludes that service connection for the claimed right arm fracture residuals is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him in October 2011 under the Veterans Claims Assistance Act of 2000 (VCAA) and he has not identified any prejudice resulting from any deficiency. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (no presumption of prejudice on a notice deficiency; the burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency's determination). The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran has provided no more than the barest description of his claimed right arm disability and claimed in-service injury. It is the claimant's responsibility to present and support a claim for benefits. See 38 C.F.R. § 5107(a) (West 2002). Here, despite a VCAA letter which specifically requested such information and evidence, in compliance with 38 U.S.C.A. § 5103A, the Veteran has not done so. The duty to assist is not always a one-way street. If a VA claimant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The RO has also obtained a thorough medical examination regarding the rating claim. The Veteran has made no specific allegations as to the inadequacy of any examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). The Board has acknowledged that treatment of the Veteran's diabetes now requires insulin, and this may be interpreted as suggesting a worsening of the disability since the most recent examination. When a claimant alleges that his or her service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). However, in this case, there is no assertion on the Veteran's part or on his behalf that treatment of his diabetes now or has ever required the regulation of activities. A new examination to evaluate diabetes mellitus has not been requested. The Veteran's representative has asked that all claims be remanded; however, the basis for this request was so that his service connection claims could be reconsidered after a determination is made regarding his coronary artery disease service connection claim. As there is no assertion of worsening to the extent of the requirement of restriction of activities, the Board finds that a new examination for diabetes is not necessary. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to the claim of entitlement to service connection for right arm fracture residuals. However, the Board finds that a VA examination is not necessary in order to decide this claim. VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McClendon v. Nicholson, 20 Vet App. 79, 81 (2006). Here, the Board has found that the competent and credible evidence regarding the incurrence of an injury or disease in service establishes that there was no injury or disease involving the right arm in service and that arthritis was not manifest to a degree of 10 percent within one year of service separation. The Board adds that there is also no diagnosis of any right arm disorder to include arthritis. Therefore, a VA examination and medical opinion are not necessary. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. ORDER A disability rating in excess of 20 percent for diabetes mellitus is denied. Service connection for claimed residuals of a right arm fracture is denied. REMAND In a November 2013 rating decision, the RO denied service connection for a right hip disorder, a low back disorder, a right leg disorder, dizziness, an acquired psychiatric disorder, and hypertension. The Veteran filed a Notice of Disagreement with that decision on September 10, 2014. To date, a Statement of the Case has not been issued. Where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the Agency of Original Jurisdiction to direct that a Statement of the Case be issued. See 38 C.F.R. §19.9(c)(2015); Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran asserts that there is an etiologic relationship between the claimed psychiatric disorder and the onset of COPD and sleep apnea. Therefore, the issues of entitlement to service connection for COPD and sleep apnea are inextricably intertwined with the issue of entitlement to service connection for an acquired psychiatric disorder, and adjudication of those issues must be deferred pending the requested development. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the issues of entitlement to service connection for a right hip disorder, a low back disorder, a right leg disorder, dizziness, an acquired psychiatric disorder, hypertension, COPD, and sleep apnea, are REMANDED for the following action: 1. Issue a Statement of the Case pertaining to the issues of entitlement to service connection for a right hip disorder, a low back disorder, a right leg disorder, dizziness, an acquired psychiatric disorder, and hypertension, and in connection therewith, provide the Veteran with appropriate notice of his appellate rights. The Veteran is reminded that, to vest the Board with jurisdiction over these issues, a timely Substantive Appeal (completed and signed VA Form 9 or equivalent) must be filed after receiving the Statement of the Case. See 38 C.F.R. § 20.202 (2015). If, and only if, the Veteran perfects the appeal to any issues, the perfected issue(s) must be returned to the Board for appellate review. 2. Regardless of whether any additional appeals are perfected, prepare and dispatch a Supplemental Statement of the Case regarding the intertwined issues of entitlement to service connection for COPD and sleep apnea, and return those issues to the Board if any benefit sought on appeal is not granted. The Veteran has the right to submit additional evidence and argument on the remanded matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). These issues must be afforded expeditious treatment. The law requires that all claims 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 2014). ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs