judge_norm: J A MARKEY

condition: hypertension

disposition: remanded

text: 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 2002 & Supp. 2010).

text:
Citation Nr: 1115000
Decision Date: 04/15/11    Archive Date: 04/21/11

DOCKET NO.  06-17 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial disability rating in excess of 30 percent for PTSD.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

K. A. Kennerly, Counsel

INTRODUCTION

The appellant served on active duty from June 1952 to March 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claims of entitlement to service connection for depression, right knee arthritis, prostate cancer, bladder cancer and hypertension.  In July 2005, the appellant submitted a Notice of Disagreement (NOD) with the denial of his claims for depression and hypertension.  A Statement of the Case (SOC) was issued in April 2006 and the appellant timely perfected his appeal in June 2006.

In February 2008, VA granted the appellant's claim of entitlement to service connection for PTSD (previously noted as depression), assigning a 10 percent disability rating.  In May 2008, the appellant submitted a NOD with this assignment.  Following the receipt of additional VA treatment records, in July 2008, the RO increased the appellant's PTSD disability rating from 10 percent to 30 percent disabling, effective the date of claim.  Because the filing of a NOD initiates appellate review, the claim must be remanded for the preparation of a SOC.  See Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).

In September 2010, the issue of entitlement to service connection for hypertension, to include as secondary to PTSD, came before the Board.  At that time, it was remanded for additional evidentiary development.  The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

The Board notes that the jurisdiction of the appellant's claim was subsequently transferred to the Montgomery, Alabama RO.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  See 38 U.S.C.A. � 7107(a)(2) (West 2002).

The issue of entitlement to an initial disability rating in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  The appellant will be notified if any further action on his part is required.

FINDING OF FACT

The preponderance of the evidence is against a finding that hypertension is the result of the appellant's time in active duty service; manifested within the first post-service year; or due to a service-connected disability.

CONCLUSION OF LAW

Hypertension was not incurred in or aggravated by active duty service or presumptively related thereto, nor is it related to or aggravated by any service-connected disability.  38 U.S.C.A. �� 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309, 3.310(a) (2010).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant.  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the appellant's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326 (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.

Prior to and following the initial adjudication of the appellant's claim, letters dated in November 2004, March 2006, and December 2007 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. � 5103(a) (West 2002); 38 C.F.R. � 3.159(b)(1) (2010); Quartuccio, at 187.  The March 2006 and December 2007 notice letters informed the appellant of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. � 20.1102 (2010) (harmless error).  In view of the foregoing, the Board finds that the appellant was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify.

The Board also concludes VA's duty to assist has been satisfied.  The appellant's service treatment records and VA medical records are in the file.  Private medical records identified by the appellant have been obtained, to the extent possible.  The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

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.  The record indicates that the appellant participated in a VA examination in October 2010 and the results from that examination have been included in the claims file for review.  The examination involved a review of the claims file, a thorough examination of the appellant, and an opinion that was supported by sufficient rationale.  Therefore, the Board finds that the examination is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim.

Additionally, the Board finds there has been substantial compliance with its September 2010 remand directives.  The Board notes that the Court has recently noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance."  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.)  The record indicates that the Appeals Management Center (AMC) scheduled the appellant for a medical examination and the appellant attended that examination.  The AMC later issued a supplemental statement of the case in January 2011.  Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand.  See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders).  Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. � 3.655 (2010).

In a case such as this where it appears that the majority of the appellant's service treatment records are incomplete, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).  The Board must point out; however, the O'Hare precedent does not raise a presumption that the missing medical records would, if they still existed, necessarily support the appellant's claim.

Case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the appellant's medical records have been destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The Board finds that the RO has substantially complied with the heightened duty to assist set forth in O'Hare through the development undertaken.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the appellant is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The appellant has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the appellant has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II.  The Merits of the Claim

The appellant contends that he currently suffers from hypertension either as a direct result of active duty service or secondary to his service-connected PTSD.  After a thorough review of the appellant's claims file, the Board finds that he is not entitled to service connection on a direct or secondary basis.

Governing Law and Regulations

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. � 1110, 1131 (West 2002).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  See 38 C.F.R. � 3.303(b) (2010).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service.  See 38 C.F.R. � 3.303(d) (2010).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  See 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.307, 3.309 (2010).

Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury.  See 38 C.F.R. � 3.310(a) (2010); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

The Board also notes that as provided by 38 U.S.C.A. � 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed.  See Barr, supra.  For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology.  See id., at 1376-77.  In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Hypertension means persistently high arterial blood pressure, and by some authorities the threshold for high blood pressure is a reading of 140/90.  See Dorland's Illustrated Medical Dictionary at 889 (30th ed. 2003).  For VA purposes, hypertension means that the diastolic pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic pressure is predominantly 160 or greater with a diastolic pressure of less than 90.  See 38 C.F.R. � 4.104, Diagnostic Code 7101 (2010).

Analysis

The Board acknowledges the appellant has been diagnosed with hypertension, thus satisfying element (1) of Shedden, supra, and Wallin, supra.  See also VA Examination Report, October 27, 2010.  It is also noted that the appellant is service-connected for PTSD, satisfying element (2) under Wallin, supra.

The only service treatment record associated with the appellant's VA claims file is that of his service separation examination report.  At that time, the appellant's diastolic pressure was 68 and his systolic pressure was 130.  See Standard Form 88, Service Separation Examination Report, March 18, 1954.  This finding clearly does not meet the requirement for hypertension for VA purposes, set forth in 38 C.F.R. � 4.104, Diagnostic Code 7101 (2010), noted above.  Furthermore, there is no evidence that hypertension was present to a compensable degree within the first post-service year.  Therefore, service connection on a presumptive basis is not warranted.  See 38 U.S.C.A. �� 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. �� 3.307, 3.309 (2010).  As such, the appellant has failed to establish Shedden element (2), in-service disease or injury.  See Shedden, supra.

The Board is of course aware of the provisions of 38 C.F.R. � 3.303(b), discussed above, relating to chronicity and continuity of symptomatology.  However, the medical evidence indicates that the appellant's hypertension had its onset in 1998, nearly 45 years after the appellant left military service.  See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider a veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Voerth v. West, 13 Vet. App. 117, 120-21 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a layperson's observation is competent].

The only evidence of record in support of the appellant's claim that his currently diagnosed hypertension is related to active duty service consists of his own lay statements.  The Board acknowledges that the appellant is competent to give evidence about what he experiences.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).

The Board observes that 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).  See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology).  In the present case, hypertension is not a condition that is lay observable.  Further, the appellant is not competent to state that his currently diagnosed condition is related to his time in active duty service, as he is not a medical professional.  See Rucker, supra.  In fact, the medical evidence of record set forth below weighs directly against the appellant's contention.

The appellant was afforded a VA examination in October 2010.  At that time, after thoroughly reviewing the appellant's claims file, the VA examiner noted that the appellant's hypertension was diagnosed in 1998.  The available medical records indicated that he did not have hypertension on discharge from the military in 1954, and he did not report any injury that would have contributed to hypertension.  The VA examiner concluded that the appellant's currently diagnosed hypertension was not a direct result of his time in active duty service.  See VA Examination Report, October 27, 2010.  The Board finds the negative medical opinion provided by the VA examiner to be more probative than the lay statements provided by the appellant.

Although the appellant has established that he currently suffers from hypertension, the evidence of record does not support a finding that this condition is the result of his time in service.  The appellant has failed to meet the criteria set forth in Shedden elements (2) and (3).  See Shedden, supra.  As such, his claim of entitlement to service connection for hypertension on a direct basis fails.

With respect to the appellant's claim of entitlement to service connection for hypertension as secondary to his service-connected PTSD, as noted above, the appellant has met elements (1) and (2) under Wallin.  See Wallin, supra.  Accordingly, the only remaining inquiry is whether a competent nexus exists between hypertension and PTSD.

Duplicative of his direct service connection claim, the only evidence of record that tends to connect the appellant's hypertension and his service-connected PTSD consists of his own lay statements.  As noted above, the appellant is not competent to diagnose himself with hypertension, much less determine that hypertension is secondary to his service-connected PTSD.  See Rucker, supra; see also Layno, supra.  Further, the medical evidence of record does not support the appellant's contention.

The October 2010 VA examination also addressed the question of secondary service connection.  The VA examiner noted that the appellant had a long-standing diagnosis of PTSD, which existed many years prior to the appellant's 1998 diagnosis of hypertension.  The VA examiner further stated that there was no correlation, time wise, between the appellant's service-connected PTSD and his hypertension and there was no evidence that his hypertension was aggravated beyond the natural progression of the disease based on the fact that it has been easily controlled with atenolol for the past 12 years.  Additionally, the VA examiner stated that the relevant medical literature did not establish a clear cut consensus among those treating hypertension or PTSD, that PTSD causes hypertension.  Accordingly, the VA examiner concluded that the appellant's hypertension was not secondary to his service-connected PTSD.  See VA Examination Report, October 27, 2010.

As such, the appellant's claim of entitlement to service connection for hypertension as secondary to his service-connected PTSD fails on the basis of Wallin element (3).  See Wallin, supra.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. � 5107(b) is not for application.  In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the appellant's claim that his current hypertension is directly related to service or secondary to a service-connected disability.  There is not an approximate balance of evidence.

ORDER

Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is denied.

REMAND

After a thorough review of the appellant's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claim of entitlement to an initial disability rating in excess of 30 percent for service-connected PTSD.

In February 2008, VA granted the appellant's claim of entitlement to service connection for PTSD (previously noted as depression), assigning a 10 percent disability rating.  In May 2008, the appellant submitted a NOD with this assignment.  Following the receipt of additional VA treatment records, in July 2008, the RO increased the appellant's PTSD disability rating from 10 percent to 30 percent disabling, effective the date of claim.  This increase does not constitute a full grant of the benefit sought.  See AB v. Brown, 6 Vet. App. 35, 39 (1993).

Accordingly, the claim must be remanded to allow the RO to provide the appellant with a SOC.  See Manlincon, supra.  However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archibold v. Brown, 9 Vet. App. 124, 130 (1996).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  Expedited handling is requested.)

Provide the appellant with an SOC as to the issue of entitlement to an initial disability rating in excess of 30 percent disabling for PTSD.  The appellant should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board.  See 38 C.F.R. �� 20.200, 20.202, and 20.302(b) (2010).  If a timely substantive appeal is not filed, the claim should not be certified to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  See 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 2002 & Supp. 2010).

____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: MICHAEL LANE

disposition: denied

condition: gi

text:
Citation Nr: 1116000
Decision Date: 04/22/11    Archive Date: 05/04/11

DOCKET NO.  06-17 315	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for duodenal ulcer, to include as secondary to hypertension and service-connected PTSD.

REPRESENTATION

Appellant represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1952 to October 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 Regional Office (RO) in Waco, Texas rating decision, which denied the claims on appeal.

The Veteran had a hearing before the undersigned Veterans Law Judge in April 2009.  A transcript of the hearing has been associated with the claims file.

The above claims were previously remanded by the Board in August 2009 and September 2010.  The requested development having been completed, the Board may proceed to a decision on the merits.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2010).  38 U.S.C.A. � 7107(a)(2) (West 2002).

FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran has a current diagnosis of hypertension that is etiologically related to a disease, injury, or event in service, to include service-connected PTSD, nor may such a disability be presumed the result of military service.

2.  The preponderance of the evidence is against finding that the Veteran has a current diagnosis of duodenal ulcer that is etiologically related to a disease, injury, or event in service, to include service-connected PTSD.

CONCLUSIONS OF LAW

1.  Service connection for hypertension is not warranted.  38 U.S.C.A. �� 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. � 3.310 (2006); 38 C.F.R. �� 3.303, 3.304, 3.307, 3.309 (2010).

2.  Service connection for duodenal ulcer is not warranted.  38 U.S.C.A. �� 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. � 3.310 (2006); 38 C.F.R. �� 3.303, 3.304 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims, the Department of Veterans Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

VCAA letters dated in May 2005, March 2006, June 2010, and September 2010 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. � 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. � 3.159(b)(1) (2010); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.

Several of the letters from the RO explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).

In this case, the Veteran has been continuously represented by an experienced State Service Organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for service connection on a direct and secondary basis.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records could not be obtained because of a fire-related incident.  Attempts to obtain this information from other sources were unsuccessful, save the Veteran's October 1953 medical examination on separation.  Any further attempts to obtain the Veteran's service treatment records would be futile.  VA treatment records are in the file.  Private treatment records identified by the Veteran have been obtained, to the extent possible.  In that regard, the Board notes that several requests to private treatment providers were ignored.  The Veteran was notified of the private providers' failure to respond and afforded the opportunity to provide such records.  In several cases, the Veteran chose to do so.  The Veteran has not referenced further outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

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.  38 C.F.R. � 3.159(c)(4)(i) (2010).  In this case, the Veteran was afforded a VA examination in March 2010, pursuant to the directive of the August 2009 Board remand, where the Veteran was diagnosed with hypertension and duodenal ulcer.  Based on the Veteran's reported history, review of the available medical records, and physical examination, the examiner concluded that it was less likely than not that the Veteran's hypertension and duodenal ulcer were permanently aggravated by his PTSD.  A June 2010 addendum is also of record.  In addition, the Board remanded the claims in September 2010 to obtain an addendum opinion with greater rationale as to the reasoning for the March 2010 examiner's conclusions.  The subsequent November 2010 addendum, as will be discussed, opined that the Veteran's hypertension and duodenal ulcer were not due to his active military service or caused or aggravated by his service-connected PTSD and provided the requested rationale.  As the examiner's report and addendum were based on review of the Veteran's service treatment and medical records, interview of the Veteran, and physical examination, and provided a sufficient rationale for its conclusions, the Board finds the March 2010 examination report and June 2010 and November 2010 addenda to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

With respect to the Veteran's claim that his duodenal ulcer was caused by his hypertension, as will be discussed in greater detail below, the Veteran's claim for entitlement to service connection for hypertension is denied.  As such, an examination or opinion as to any possible relationship between the two disabilities is not required and would serve no useful purpose.  See Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that the Board is not obligated to investigate all possible theories of entitlement, but rather, only as to those theories for which the evidence is sufficient to reach the low threshold necessary to trigger the duty to assist.); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

Based on the March 2010 VA examination and November 2010 addendum opinion and the VA treatment records associated with the claims file, the Board finds that there has been substantial compliance with its August 2009 and September 2010 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. �� 1110, 1131 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. � 3.303(b) (2010).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. � 3.303(d).

Certain diseases, to include hypertension, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. � 1112 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.307, 3.309 (2010).  As will be discussed, there is no evidence or claim that the Veteran was diagnosed with diabetes mellitus, type II, or peripheral neuropathy within one year of service the above provision is not applicable.

In the absence of presumption, to establish a right to compensation for a present disability on a direct basis, 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."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. � 3.310 (2010).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. � 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The Board observes that the provisions of 38 C.F.R. � 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal.  See 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by service-connected one is judged.  Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the non-service connected disability before an award of service connection based on aggravation may be made.  This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation.  For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. � 3.310 as it is more favorable to the Veteran.

Initially, the Board notes the Veteran is in receipt of, among other awards and medals, the combat infantry badge (CIB), for his combat service in Korea.  In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. � 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service.  However, 38 U.S.C.A. � 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.

The Veteran has been service-connected for PTSD, effective from July 2004.  The Veteran claims that his current hypertension and, possibly, his duodenal ulcer were caused by his service-connected PTSD.  In addition, the Veteran asserts that his duodenal ulcer was caused or aggravated by his hypertension.

Regrettably, the Veteran's service treatment records could not be obtained due to a fire-related incident.  Attempts to rebuild the file from other sources were unsuccessful, save the Veteran's October 1953 medical examination at separation from service.  Where "service medical records are presumed destroyed . . . the BVA's [Board's] obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened."  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).

With respect to the October 1953 separation examination, the Veteran's blood pressure was 118 / 70 and was noted to have a normal vascular system and abdomen.

 After service, the Veteran claims that he was diagnosed with duodenal ulcer and hypertension in 1975, save on one instance during the March 2010 VA examination when he claimed he was diagnosed with hypertension in the 1950s and his ulcer in the 1960s.  Medical records indicate that the Veteran was diagnosed with a duodenal ulcer in 1975 and hypertension in approximately 1978.  Thereafter, the Veteran intermittently has been on medication for the disabilities to the present.

The Veteran was afforded a VA examination in March 2010.  The examiner noted review of the claims file.  At that time, the Veteran claimed that after returning from Korea in the 1950s he was started on high blood pressure medication.  The Veteran denied a history of rheumatic fever, heart rhythm disturbance, valvular heart disease, congestive heart failure, angina, syncope, fatigue, or dyspnea, but there was a history of myocardial infarction in 1996.  On examination, the Veteran's blood pressure was 138 / 80, 134 / 73, and 147 / 79.  The diagnosis was hypertension.  With respect to the ulcer, the Veteran reported onset of symptoms in the 1960s.  Based on an August 1975 GI series of record, the examiner's impression was duodenal ulcer.  As to etiology, the examiner opined that the Veteran's hypertension and duodenal ulcer were less likely as not permanently aggravated by his PTSD.  The rationale for the opinion was that duodenal ulcer and hypertension were diagnosed before PTSD, there was a strong family history of cardiac problems, the Veteran had a history of smoking, and a recent article in Behavioral Medicine that the examiner interpreted to find that research into the association between PTSD and cardiovascular disease was unclear "beyond the risks associated with comorbid depression."  However, the examiner also indicated that the report stated, "PTSD appears to be related to hypertension independent of depression."

A June 2010 addendum opinion stated that the Veteran's ulcer and hypertension were not caused by or a result of his active military service.  As to rationale, the examiner noted clear documentation that the Veteran was diagnosed with hypertension in 1978, or 25 years after service and diagnosed with peptic ulcer disease in 1974, or 21 years after service.  Given this length of time, the examiner concluded that the hypertension and ulcer were not caused or aggravated by the Veteran's military service.

Due to the unclear rationale indicated in the March 2010 VA examination report, the Board remanded the claim in September 2010 for an addendum to the report.  With respect to the duodenal ulcer, the examiner's rationale was that the Veteran did not have treatment for an ulcer in service, the ulcer was not diagnosed until 21 years after service, and that a clinical consult reference manual indicated that risk factors for duodenal ulcer included NSAID use, smoking cigarettes, family history of ulcers, Zollinger Ellison Syndrome, certain medications, Crohn's disease, vascular insufficiency, radiation therapy, and cancer chemotherapy, but did not include PTSD or other psychiatric disabilities.  With respect to the hypertension, the examiner's rationale was that the Veteran was not treated for or diagnosed with hypertension in service, hypertension was not diagnosed until 25 years after service, and the same clinical consult reference manual indicated that the likely etiologies for hypertension were: renal parenchyma, endocrine, vascular, or chemical (oral contraceptives, decongestants, NSAIDs, or sleep apnea).  The examiner noted that psychiatric illness, including PTSD, was not noted as a possible etiology of hypertension.  The examiner stated that transient occurrences of stress, exercise, or caffeine ingestion could cause a physiologic increase in blood pressure, but that hypertension was a chronic pathologic disorder and not caused by transient events.  The examiner also indicated that the expressed opinions were based on his clinical experience and medical knowledge.

For the limited purpose of this discussion, the Board concedes that the Veteran has current hypertension and duodenal ulcer disabilities.  As noted above, the Veteran contends that these disabilities were proximately caused by his service-connected PTSD.  The Board has considered, therefore, whether the Veteran's current hypertension and duodenal ulcer are proximately due to or the result of his service-connected PTSD.  Based on the evidence of record, the Board concludes they are not.

The Board finds the overall opinions expressed in the March 2010, June 2010, and November 2010 VA examiners' report and addenda to be credible and probative, save for the unclear rationale for the etiology opinion in the March 2010 VA examination report, as discussed above.  The report and addenda were based on an interview of the Veteran, his reported medical history, appropriate diagnostic testing, physical examination, and general medical reference material.  Further, a complete and through rationale was provided for the opinions rendered.  As noted, the examiners discussed the timing of the Veteran's diagnosis of PTSD relative to the duodenal ulcer and hypertension, that the Veteran was not diagnosed with either disability until more than 20 years after service, and that the medical evidence did not indicate that psychiatric illness, including PTSD, was a causative or aggravating factor in duodenal ulcer or hypertension.  In combination, the examiners' conclusions are fully explained and consistent with the evidence of record.

Furthermore, the Board has considered the Veteran's and his wife's contentions that his current duodenal ulcer and hypertension disabilities were caused by his service-connected PTSD.  In this regard, the Board acknowledges that the Veteran and his wife are competent to give evidence about what they experienced; for example, the Veteran is competent to discuss related symptoms, such as stomach problems and dizziness.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).   However, in most cases, the Veteran and his family are not competent to render an opinion as to the cause or etiology of any current disorder because they do not have the requisite medical knowledge or training.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence).  In this instance, therefore, the Veteran and his wife as lay persons have not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between the Veteran's duodenal ulcer and hypertension disabilities and his PTSD.  As such, the Board ascribes far more weight to the conclusions of the multiple medical professionals who each concluded that the Veteran's duodenal ulcer and hypertension disabilities were not caused or aggravated by his PTSD.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).

With respect to the Veteran's claim that his current duodenal ulcer was caused or aggravated by his hypertension, as discussed above, service connection has not been established for hypertension.  As such, service connection may not be established for duodenal ulcer as secondary to service-connected hypertension, as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

In short, the most probative medical evidence specifically rules out a relationship between the Veteran's current duodenal ulcer and hypertension and his service-connected PTSD.  The Board places more weight on the opinions of the multiple competent VA treatment professionals who provided the March 2010, June 2010, and November 2010 opinions, based on review of the medical records and claims file, interview of the Veteran, and physical examination, than on the Veteran's lay assertions that his current duodenal ulcer and hypertension are related to his service-connected PTSD.  With respect to the claim that his ulcer was caused or aggravated by his hypertension, as hypertension is not service-connected this argument may not service as a basis for service connection for the duodenal ulcer.  As such, no finding of service connection on a secondary basis is warranted for either claim.

With regards to otherwise granting service connection on a direct basis, the Board notes that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service or symptomatology was consistent from service.  38 C.F.R. 3.303(d).  Currently, there is no evidence of record indicating the Veteran was treated for or diagnosed with duodenal ulcer or hypertension in service, nor does the Veteran credibly argue the disorders began in service or that he experienced a continuity of symptomatology from service.  In that regard, the Board has considered the Veteran's contentions during the March 2010 VA examination that he was diagnosed with hypertension in the 1950s after returning from Korea and treated for the problem thereafter.  The Board finds this statement not credible in light of the medical evidence of record indicating an initial diagnosis of hypertension in the 1970s and the Veteran's own statements during the April 2009 Board hearing that he was first diagnosed with hypertension in 1975.  See Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.).  Furthermore, no medical opinion has related his duodenal ulcer or hypertension directly to service or any other incident of military service.  Indeed, the June 2010 and November 2010 VA examination report addenda specifically found otherwise.  Therefore, service connection for duodenal ulcer and hypertension on a direct basis is not warranted.

In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  The appeal must therefore be denied.

ORDER

Entitlement to service connection for hypertension is denied.

Entitlement to service connection for duodenal ulcer is denied.

____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: STEVEN D REISS

disposition: granted

condition: tinnitus

disposition: dismissed

text:
Citation Nr: 1117000
Decision Date: 05/03/11    Archive Date: 05/10/11

DOCKET NO.  07-06 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUES

1.  Entitlement to service connection for tinnitus.

2.  Entitlement to service connection for hearing loss.

3.  Entitlement to service connection for a ruptured ear drum.

REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.

WITNESSES AT HEARING ON APPEAL

Appellant and Witness

ATTORNEY FOR THE BOARD

D. Johnson, Counsel

INTRODUCTION

The Veteran had active duty service from June 1966 to February 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In March 2011, a hearing was held before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  Following the hearing, the Veteran submitted additional evidence consisting of several lay statements.  He supplied a waiver of his right to have this evidence initially considered by the RO; hence, the Board accepts this evidence for inclusion in the record.  See 38 C.F.R. � 20.1304 (2010).

FINDINGS OF FACT

1.  Tinnitus had its onset in service.

2.  Hearing loss had its onset in service.

3.  In March 2011, prior to the promulgation of a decision in the current appeal, the Veteran asked that his claim for entitlement to service connection for a ruptured ear drum be withdrawn from appellate review.

CONCLUSIONS OF LAW

1.  Resolving all doubt in the Veteran's favor, tinnitus was incurred in service.  38 U.S.C.A. �� 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303 (2010).

2.  Resolving all doubt in the Veteran's favor, hearing loss was incurred in service.  38 U.S.C.A. �� 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.385 (2010).

3.  The criteria for the withdrawal of the Substantive Appeal with respect to service connection for a ruptured ear drum have been met.  38 U.S.C.A. � 7105 (West 2002); 38 C.F.R. �� 20.101, 20.202, 20.204 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this decision, the Board grants service connection for tinnitus and hearing loss.  As this represents a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary.

Service Connection

The Veteran seeks service connection for tinnitus and hearing loss.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).  Service connection generally requires credible and competent evidence showing: (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.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability.  Id. at 1076; see also 38 U.S.C.A. � 7104(a).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604(Fed.Cir.1996).

Service treatment records are negative for complaints or clinical findings of tinnitus or a hearing loss disability consistent with 38 C.F.R. � 3.385.  A physical examination conducted in February 1970 at the time of the Veteran's separation from service showed whispered voice tests of 15/15 bilaterally.  Post-service VA treatment records beginning in December 2004 show a complaint of chronic hearing problems and an associated buzzing sound.  The Veteran was issued a hearing aid for the right ear in January 2005.

At a VA ear disease examination in August 2005 the Veteran reported decreased hearing that was worse in the right ear, and constant bilateral tinnitus.  Following a clinical evaluation, the clinician diagnosed bilateral sensorineural type hearing loss, most likely from noise exposure.

The Veteran underwent a VA audiological examination in August 2005.  His claims file was reviewed by the examiner.  The Veteran reported hearing loss was first noticed around 1971 or 1972 during a hearing evaluation with the Firestone Tire Company.  He also reported a history of noise exposure in service for an unknown period of time.  He denied a history of significant recreational noise exposure.  He reported tinnitus had been present for years.  A clinical evaluation revealed a mild to moderate sensorineural hearing loss in both ears.  The examiner opined that the service records did not support noise exposure experiences and thus it appeared that the claimed hearing impairment was less likely as not caused by noise exposure experiences while in the Navy.

Following these examinations, the Veteran's service personnel records were obtained.  Information in these records revealed that the Veteran was assigned to a naval destroyer and a naval destroyer escort and served as a seaman apprentice, seaman recruit, and seaman.  Based on these records, the RO conceded noise exposure noting that due to the nature and function of these vessels there were large guns onboard that were fired regularly.  As such, an individual with the Veteran's rating would have been exposed to considerable noise.

The Veteran was thereafter afforded another VA audiological examination in April 2006 for a nexus opinion that included consideration of conceded in-service noise exposure.  A VA examiner reviewed the claims file and opined that there was no change in the prior opinion that due to the lack of evidence of routine in-service noise exposure experiences, the Veteran's hearing impairment and the claimed tinnitus were less likely than not cause by military noise exposure.  The examiner did indicate, however, that any documentation of diminished hearing acuity around 1971 and 1972 (i.e. shortly after discharge) should be considered evidence in support of the Veteran's claim.

Following that examination, the Veteran submitted copies of hearing tests that were administered at Firestone.  A hearing test administered in 1973 (pre-employment) reflected pure tone thresholds at 500 1000 2000 4000 6000 8000 HERTZ were as follows:  Right Ear 5 0 20 20 5 15 and Left Ear 0 0(5) 5 15 15 15.  A hearing test administered in 1975 (for purposes of retirement) reflected pure tone thresholds at 500 1000 2000 4000 6000 8000 HERTZ were as follows: Right Ear 15 10 30 25 25 30 and Left Ear 20 10 15 25 30 30.

The Veteran was afforded another VA audiological examination in December 2008, to include consideration of the post-service civilian employment hearing tests.  During the examination, the Veteran reported noise exposure in service while working with the deck force on two different destroyers, including operating gun mounts without hearing protection.  He stated after service, he worked in construction, roofing and performed janitorial work for about 2-3 years before he was hired at Firestone.  He stated that he almost was not hired at Firestone due to his hearing.  He denied use of hearing protection at Firestone.  After leaving Firestone, he drove a truck for several years and then became a barber in 1978 or 1979 and that he is still a barber at present.  The Veteran denied recreational noise exposure but did report that he has ridden motorcycles for some time with use of a helmet.  The Veteran reported constant ringing, buzzing, or cricket tinnitus bilaterally.  He could not recall exactly when it began, but estimated it was 5 to 10 years ago.

Following a clinical examination (that established a hearing loss disability consistent with 38 C.F.R. � 3.385), the examiner opined that he concurred with the original opinion rendered in 2005, that it appears much less than 50 percent likely that the Veteran's hearing loss and tinnitus are attributable to military duty.  The examiner's rationale was that hearing tests from Firestone showed normal hearing at the beginning of his employment in 1973 (three years after military service); however, a hearing test 2 years later, after working at Firestone, showed a significant change in hearing when compared to his pre-employment test.  Therefore, it appears that hearing loss began while working at Firestone.  Regarding the tinnitus, the examiner's rationale was that the Veteran provided an estimated onset date that was several decades removed from military duty.

In undated witness statements, several of the Veteran's former Firestone co-workers attested to the fact that there was very little noise in the area in which they and the Veteran worked constructing tires.  A May 2009 private treatment record from Dr. Wood indicates that the Veteran reported exposure to high levels of noise during his naval service.  Dr. W. stated, "This could be sufficient to cause hearing loss."

At the Veteran's March 2011 hearing before the undersigned, he testified that he was exposed to acoustic trauma without hearing protection during service.  He reported that he noticed a little hearing loss prior to his civilian employment with Firestone.  The Veteran's representative contended that an undated audiogram in the service records reflected hearing thresholds similar to those exhibited at the 1975 retirement evaluation at Firestone.  The Veteran and his representative also speculated that the 1973 Firestone (pre-employment) hearing test was altered by Firestone so as to allow the Veteran to qualify for employment.  The Veteran contended that he "barely passed" that evaluation.  He denied excessive noise exposure while working at Firestone.  The Veteran's spouse testified that she had been married to the Veteran for 10 years and had only known the Veteran for a short while prior to their marriage.  The Veteran also testified that the ringing in his ears started in service and had continued since.

Tinnitus

The Veteran contends that his tinnitus is due to noise exposure experienced during his military service.  Based upon the Veteran's documented military occupational specialties, the Board acknowledges that the Veteran was likely exposed to loud noise.  The Board is mindful of the negative nexus opinions proffered by the VA examiners; however, given the Veteran's military occupational specialties, his credible account of tinnitus and report that it began during service and persisted since, the Board, resolving reasonable doubt in his favor, finds that his tinnitus had its onset in service.

Hearing Loss

The Veteran contends that his current hearing loss is due to military noise exposure.  As an initial matter, the Board notes that the VA audio examination results reflect a current bilateral hearing loss disability for VA purposes as defined by 38 C.F.R. � 3.385.  The Board has considered the Veteran's statements and hearing testimony concerning in-service noise exposure, as well as his documented duty assignment.  In giving due consideration to the circumstances of his service, military noise exposure is conceded.  38 U.S.C.A. � 1154(a).  Thus, the only remaining requirement to establish service connection is evidence of a nexus between the current bilateral hearing loss and the in-service noise exposure, or some other event.  In this case, bilateral hearing loss was first shown many years after separation from active service and cannot be presumed to have been incurred during service.  See 38 U.S.C.A. � 1112 (West 2002); 38 C.F.R. �� 3.307, 3.309 (2010).  Nonetheless, the Board finds that the evidence pertaining to a causal nexus in this case is at least in equipoise.

Evidence in favor of the claim includes the Veteran's credible and competent lay testimony regarding noise exposure in service without the benefit of hearing protection; an awareness of hearing loss shortly after service; and report that his hearing acuity was noted to have been barely sufficient for civilian employment with Firestone during a prescreening evaluation.  The statements of his former co-workers attesting to the lack excessive noise while working at Firestone are also found to be credible and competent and tend to support the Veteran's claim.  The VA and private medical opinions indicating the Veteran's hearing loss is the result of noise exposure are not against the claim, but are not necessarily dispositive in the Veteran's favor either, as the clinicians failed to specifically identify military noise exposure as the cause of the current hearing loss.

Evidence against the claim includes the December 2008 VA examiner's competent and probative medical opinion that the Firestone pre-employment hearing test showed the Veteran's hearing was still relatively normal some two years after separation from service, and that the significant decline in his hearing acuity upon retirement from Firestone is indicative of noise exposure sufficient to cause hearing loss.  The August 2005 and April 2006 VA examiners also provided competent and probative medical opinions against a nexus.  In addition, while the Veteran has not reported any other noise exposure except for military noise exposure, the Board is mindful that his post-service civilian employment in construction, roofing, and as a janitor (prior to employment with Firestone) and his employment as a truck driver and his recreational motorcycle use (after leaving Firestone) also likely exposed him to noise.  However, there is no medical opinion in the record that adequately addresses whether such additional noise exposure is related to his current hearing loss disability.  In short, the evidence is in relative equipoise.

Given the Veteran's documented military occupational specialties, conceded military noise exposure and credible report that he was not issued hearing protection, and his report that he noticed hearing loss shortly after service, the witness statement attesting to the lack of noise exposure at Firestone, and resolving all reasonable doubt in the Veteran's favor, concludes that his current hearing loss disability had its onset in service.

Withdrawn Claim

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. � 7104; 38 C.F.R. � 20.101.  Under 38 U.S.C.A. � 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. � 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. � 20.204.  At the March 2011 hearing, the Veteran expressed intent to withdraw the issue of entitlement to service connection for a ruptured ear drum.  The Board clarified on the hearing record that it was the Veteran's intent to withdraw this issue and the Veteran acknowledged the same.  Thus, the Board finds that the Veteran knowingly and voluntarily waived his right to pursue an appeal of this issue.  See Evans v. Shinseki, No. 08-2133 (U.S. Vet. App. Jan. 28, 2011).  The Board further notes that such withdrawal was reduced to writing when the hearing testimony was transcribed, pursuant to 38 C.F.R. � 20.204.  Thus, there remains no allegation of error of fact or law for appellate consideration on that claim.  Accordingly, the Board does not have jurisdiction to consider an appeal in that matter.

ORDER

Service connection for tinnitus is granted.

Service connection for hearing loss is granted.

The claim for service connection for a ruptured ear drum is dismissed.

____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: JAMES L MARCH

condition: diabetes

text:
Citation Nr: 1118000
Decision Date: 05/11/11    Archive Date: 05/17/11

DOCKET NO.  06-13 310	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to service connection for a visual acuity disability, claimed as diabetic retinopathy and/or cataracts.

2.  Entitlement to an initial rating in excess of 20 percent for diabetes mellitus for the period between March 26, 2003, and November 1, 2006.

3.  Entitlement to a compensable initial rating for tinea cruris, tinea pedis, and subungual onychomycosis for the period between March 26, 2004, and November 1, 2006.

4.  Entitlement to a compensable initial rating for tinea cruris.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

Thomas D. Jones, Counsel

INTRODUCTION

The Veteran served on active duty from November 1962 to December 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which awarded the Veteran service connection, with a 20 percent initial rating, for diabetes mellitus and for tinea cruris, tinea pedis, and subungual onychomycosis, with a noncompensable initial rating.  Service connection was denied for a mental disorder, claimed as posttraumatic stress disorder (PTSD) and/or depression, and for a visual acuity disability, claimed as diabetic retinopathy and/or cataracts.  The Veteran appealed these denials of service connection, as well as the initial ratings assigned his diabetes and his skin disabilities.

This appeal also arises from a February 2010 rating decision, which awarded service connection for tinea cruris.  He filed a timely notice of disagreement regarding the noncompensable initial rating assigned this service-connected disability.

In the February 2010 rating decision, service connection was granted for PTSD.  Because service connection for this disability was granted, it is no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

In his April 2006 VA Form 9, the Veteran requested a personal hearing before a member of the Board, seated at the RO.  Such a hearing was scheduled for March 2009; however, because the Veteran had moved, written notice of the date and time of his hearing was not provided him, and he failed to report for his scheduled hearing.  Subsequently, the Veteran filed a June 2009 VA Form 9 withdrawing his request for a Board hearing.

The issue of entitlement to a compensable initial rating for tinea cruris is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  Competent evidence has not been presented establishing onset of a visual acuity disorder during active military service, or manifesting to a compensable degree within a year of service separation.  Additionally, a visual acuity disability is not due to or a result of a service-connected disability.

2.  Service connection was severed for diabetes mellitus.

3.  Service connection was severed for tinea cruris, tinea pedis, and subungual onychomycosis.

CONCLUSIONS OF LAW

1.  The award of service connection for a visual acuity disability, claimed as diabetic retinopathy and/or cataracts, to include as secondary to a service-connected disability, is not warranted.  38 U.S.C.A. �� 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.307, 3.309, 3.310 (2010).

2.  An initial rating in excess of 20 percent for diabetes mellitus for the period between March 26, 2003, and November 1, 2006, may not be granted as a matter of law.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �� 3.105, 3.400(o) (2010).

3.  A compensable initial rating for tinea cruris, tinea pedis, and subungual onychomycosis for the period between March 26, 2004, and November 1, 2006, may not be granted as a matter of law.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �� 3.105, 3.400(o) (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. �� 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. �� 3.102, 3.159, 3.326(a) (2010).  For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA.  A VCAA notice consistent with 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim, (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted.  Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006).

VA has made all reasonable efforts to assist the Veteran in the development of his claims, has notified him of the information and evidence necessary to substantiate the claims, and has fully disclosed VA's duties to assist him.  In April 2004 and March 2006 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claims on appeal.  Additionally, the March 2006 letter provided him with the general criteria for the assignment of an effective date and initial rating.  Id.

The Board notes that, in the present case, complete notice was issued prior to the December 2004 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With regard to the initial rating issue, in cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim 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 is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  That burden has not been met in this case.

The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence.  It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files.  The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records.  The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received.

The Board notes that no medical examination has been conducted and/or medical opinion obtained with respect to the Veteran's service connection claim for a visual acuity disorder.  Nevertheless, the Board finds that the record, which does not reflect competent evidence showing a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claims.  See 38 C.F.R. � 3.159(c)(4) (2009).  As outlined in McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the 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 the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  Simply stated, the standards of McLendon are not met in this case, as competent evidence has not been presented linking the claimed disability to service, as will be discussed in greater detail below.

Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development.  See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).  Thus, adjudication of his claims at this time is warranted.

II.  Service connection

Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. �� 1110, 1131 (West 2002); 38 C.F.R. �� 3.303, 3.304 (2010).  Service connection may also be awarded for certain disabilities, such as organic disorders of the nervous system, which manifest to a compensable degree within a year of service separation.  38 U.S.C.A. �� 1112, 1113, 1137; 38 C.F.R. �� 3.307, 3.309.  Finally, service connection may also be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability.  38 C.F.R. � 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt.  38 U.S.C.A. � 5107.

As an initial matter, the Board must consider the possibility of direct service connection, whether or not his theory is raised by the Veteran.  See Schroeder v. West, 212 F.3d 1265 (Fed. Cir.2000) (holding that a claim for disability compensation should be broadly construed to encompass all possible theories of entitlement).  The Veteran's service treatment records are negative for any diagnosis of or treatment for diabetic retinopathy, cataracts, or any other visual acuity disorder during military service.  Service treatment records do confirm the Veteran was provided eyeglasses during military service for myopia and astigmatism, and was noted on his December 1969 service separation examination to wear prescription glasses for correction of refractive error.  Nevertheless, refractive errors of the eyes such as myopia and astigmatism are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits.  38 C.F.R. �� 3.303, 4.9.  The service treatment records do not otherwise indicate diagnosis of or treatment for retinopathy, cataracts, or any related visual acuity disorders.

In the absence of any competent medical evidence or contentions by the Veteran suggesting onset of a visual acuity disorder during military service or within a year thereafter, service connection for a visual acuity disorder is not warranted on a direct basis.

Rather, the Veteran's primary contention has been that his visual acuity disorder results from his diabetes mellitus and related complications.  See 38 C.F.R. � 3.310.  As will be discussed in greater detail below, however, service connection for diabetes mellitus has been severed, and the propriety of that severance is not on appeal.  The Veteran has been awarded service-connected for PTSD and for tinea cruris, but no competent evidence has been presented establishing a link between these disabilities and a visual acuity disorder, and the Veteran does not contend as such.  Therefore, as a matter of law, service connection on a secondary basis must be denied.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

III.  Increased initial ratings

The Veteran seeks an increased initial rating for diabetes mellitus for the period between March 26, 2003, and November 1, 2006.  He also seeks a compensable initial rating for tinea cruris, tinea pedis, and subungual onychomycosis for the period between March 26, 2004, and November 1, 2006.  Within a December 2004 rating decision, the Veteran was granted service connection for these disabilities, effective March 26, 2003, for diabetes, and effective March 26, 2004, for his skin disorders.  The RO determined that the Veteran was presumed to have been exposed to herbicides during military service, to include service in Vietnam, and service connection was thus warranted under 38 U.S.C.A. � 1116.  The Veteran initiated and perfected appeals of the initial ratings assigned these disabilities.

During the pendency of this appeal, however, the RO issued a February 2006 rating decision proposing to severe these service connection awards, as his service personnel records indicated he had not in fact served in Vietnam, and therefore these awards were the product of clear and unmistakable error.  Service connection for diabetes mellitus and for skin disorders was subsequently severed within an August 2006 rating decision, effective November 1, 2006.  The Veteran did not file a timely notice of disagreement, and this decision became final.

Service connection may be severed only where the evidence establishes the original award was clearly and unmistakably erroneous.  38 C.F.R. � 3.105(d).  A rating decision reversing a prior decision on the basis of clear and unmistakable error will be effective as if it had been issued on the date of the prior reversed decision.  38 C.F.R. � 3.105(a).  Thus, in the present case, the August 2006 rating decision severing service connection for diabetes and for various skin disorders subsumes, and is effective from the date of, the December 2004 rating decision.  As this appeal for increased initial ratings arises from the subsumed December 2004 rating decision, the Veteran's March 2005 notice of disagreement is effectively rendered moot, because the disabilities for which he seeks increased ratings are themselves no longer service-connected.

The Board further notes that, by regulation, "a retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection."  38 C.F.R. � 3.400(o).  Thus, the benefit sought by the Veteran on appeal is explicitly prohibited by law.  Where, as here, the law is dispositive, the claim must be denied due to an absence of legal entitlement.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

In conclusion, as service connection for the claimed disabilities was severed effective November 2006, increased initial ratings for diabetes mellitus and for tinea cruris, tinea pedis, and subungual onychomycosis may not be granted and are prohibited under the law; the appeal is thus denied.  In so deciding, the Board is cognizant that within a February 2010 rating decision, the Veteran was awarded service connection on a direct basis for tinea cruris.  Nevertheless, any notice of disagreement regarding the initial rating or effective date assigned this award must be received by VA after notice of the February 2010 rating action, and any prior statements by the Veteran have no bearing therein.  See 38 U.S.C.A. � 7105(b).

ORDER

Entitlement to service connection for a visual acuity disability, claimed as diabetic retinopathy and/or cataracts is denied.

The issue of entitlement to an initial rating in excess of 20 percent for diabetes mellitus for the period between March 26, 2003, and November 1, 2006, is denied.

The issue of entitlement to a compensable initial rating for tinea cruris, tinea pedis, and subungual onychomycosis for the period between March 26, 2004, and November 1, 2006, is denied.

REMAND

In a February 2010 rating decision, the Veteran was awarded service connection, with a noncompensable initial rating, for tinea cruris.  The Veteran's representative subsequently filed an October 2010 statement disputing the noncompensable initial rating assigned for the Veteran's skin disability.

The Board finds this statement, filed within a year of the February 2010 rating decision and addressing an issue decided therein, constitutes a timely notice of disagreement.  The RO has, however, yet to issue the Veteran a statement of the case regarding this issue.  Under these circumstances, the Board is obliged to remand this issue to the RO for the issuance of a statement of the case.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

Accordingly, the case is REMANDED for the following action:

Issue the Veteran and his representative a statement of the case on the issue of entitlement to a compensable initial rating for tinea cruris.  The Veteran and his representative should be clearly advised of the need to file a substantive appeal if the Veteran wishes to complete an appeal of this issue.  If an appeal is perfected, then the case should be returned to the Board for further appellate consideration, as appropriate.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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 Supp. 2010).

____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs