Citation Nr: 1018528 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 08-04 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for hypertension as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for hypertensive retinopathy as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for erectile dysfunction as secondary to service-connected type II diabetes mellitus. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Tahirih S. Samadani, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied, in pertinent part, service connection for hypertension, erectile dysfunction and hypertensive retinopathy. In July 2007, the Veteran also filed a notice of disagreement with the January 2007 RO decision which assigned a noncompensable evaluation for his service-connected arrhythmia. The Veteran noted that he was seeking a 30 percent evaluation. A 30 percent evaluation was assigned in a December 2007 RO decision; therefore, it is considered a full grant of the benefit sought, and the issue is not before the Board. The issue of special monthly compensation for loss of use of a creative organ has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The evidence shows that the Veteran's hypertension has been caused, in part, or at least aggravated by his service- connected type II diabetes mellitus. 2. The evidence shows that the Veteran's hypertensive retinopathy has been caused, in part, or at least aggravated by his service-connected type II diabetes mellitus. 3. The evidence shows that the Veteran's erectile dysfunction has been caused, in part, or at least aggravated by his service-connected type II diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension as secondary to the Veteran's service-connected type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 2. The criteria for service connection for hypertensive retinopathy as secondary to the Veteran's service-connected type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2009). 3. The criteria for service connection for erectile dysfunction as secondary to the Veteran's service-connected type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Since the Board is granting the claims for service connection, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Despite this, the Board notes that some VA records and private records have not been associated with the claims file; however, the Veteran and his representative have requested that no attempts be made to obtain earlier treatment records. II. Laws and Regulations for Service Connection 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, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the 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." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). III. Entitlement to service connection for hypertension, erectile dysfunction, and hypertensive retinopathy The Veteran claims that his hypertension, hypertensive retinopathy and erectile dysfunction are caused or aggravated by his service-connected diabetes mellitus. The Veteran was not treated for hypertension, erectile dysfunction, and hypertensive retinopathy during his military service. Furthermore, the Veteran and his representative specifically stated that the Veteran is not claiming that these disabilities are directly due to his military service. As the Board is granting service connection for these disabilities as secondary to diabetes mellitus, a discussion of entitlement to service connection on a direct basis is not necessary. The claims file shows that the Veteran is currently diagnosed with hypertension, hypertensive retinopathy and erectile dysfunction. In addition, service connection for diabetes mellitus became effective in February 2001. Therefore, the Board must determine whether these current diagnoses are caused or aggravated by the Veteran's service-connected diabetes mellitus. The Veteran has received VA examinations to determine the relationship between his service-connected diabetes mellitus and his hypertension, hypertensive retinopathy and erectile dysfunction. In addition, the Board requested a General Practitioner of Medicine to provide a medical advisory opinion as to the relationship between the Veteran's claimed disabilities and his diabetes mellitus. In a VA diabetes mellitus examination conducted in September 2006, the examiner noted that the Veteran had been diagnosed with hypertension five years earlier. The examiner stated that since the Veteran had no kidney problems, his hypertension was not due to diabetes mellitus. He diagnosed the Veteran with hypertension, not due to diabetes mellitus. As to the issue of erectile dysfunction, the examiner stated that systemic disease that might affect sexual function includes hypertension and diabetes. The Veteran reported that he had erectile dysfunction and impotence for the last ten years. The Veteran also noted that he can have vaginal penetration with ejaculation with the use of Cialis. The Veteran was afforded a VA eye examination in September 2006. The examiner found no diabetic retinopathy. The examiner stated that the Veteran had diabetes mellitus without ocular complications and diagnosed him with hypertensive retinopathy. A March 2007 VA treatment record noted that the Veteran's kidneys were spilling more protein than usual most likely as a consequence of his diabetes. The physician stated that good control of the diabetes helps but some diabetics develop kidney problems nonetheless. In April 2007, the Veteran was afforded VA genitourinary examination. The Veteran reported having difficulty getting and maintaining an erection sufficient for intercourse since 1999. He noted that he was taking Viagra and Cialis. The examiner stated that etiology of the Veteran's erectile dysfunction was most likely vascular disease. The Veteran was diagnosed with erectile dysfunction, responsive to Cialis. The examiner opined that the Veteran's erectile dysfunction was less likely than not caused by or a result of diabetes mellitus. The examiner explained that the Veteran had longstanding hypertension which is the major cause of erectile dysfunction due to vascular damage from chronically elevated blood pressure. The examiner further explained that improvement in erectile response with the use of Cialis confirms a vascular cause. Additionally, the Veteran was taking antihypertensive medications which could contribute to his erectile dysfunction. The examiner stated that it was less likely than not that diabetes mellitus was the primary cause of his erectile dysfunction and that hypertension was the most likely cause of his erectile dysfunction. In December 2007, a VA physician, who previously examined the Veteran, provided another opinion as to whether the Veteran's hypertension and erectile dysfunction were related to his diabetes mellitus. The examiner stated that it is more likely than not that the Veteran's erectile dysfunction and hypertension were not due to diabetes mellitus. He explained that erectile dysfunction that is corrected with Viagra and the fact that the Veteran can have an erection without Viagra is an indication that the Veteran's erectile dysfunction is not due to diabetes mellitus. The examiner further noted that the Veteran's hypertension occurs without any kidney problems noted. Therefore, the examiner concluded that his hypertension is not due to his diabetes mellitus. In January 2010, at the Board's request, a private physician reviewed the Veteran's claims file and provided a medical advisory opinion as to the relationship between the Veteran's claimed disabilities and his diabetes mellitus. He stated that as the Veteran had diabetic nephropathy, it was likely that his current hypertension was caused, at least in part, by his diabetes. The physician explained that diabetic nephropathy frequently causes hypertension. As to the Veteran's hypertensive retinopathy, the physician explained that almost all patients with diabetes of over a 15 year duration have some retinopathy caused by their diabetes. The Veteran's diabetes was diagnosed in 1993. Hypertension can both cause retinopathy independent of diabetes and worsen the patient's diabetic retinopathy. The Veteran's hypertension developed after seven or eight years of diabetes and consequently it would be very difficult to distinguish retinopathy solely due to hypertension from retinopathy caused by his diabetes that has been worsened by his hypertension. Despite this, the physician concluded that his hypertensive retinopathy overall was more likely than not caused, at least in part, by his diabetes. As to the Veteran's erectile dysfunction, the private physician stated that erectile dysfunction is extremely common in patients with diabetes and although vascular disease may commonly be an etiologic component, the primary cause is usually neuropathic in origin. The neuropathy is usually due to the patient's diabetes and such erectile dysfunction commonly is at least partially responsive to Cialis and Viagra. Therefore, the physician found that the Veteran's current erectile dysfunction was more likely than not caused, at least in part, by his diabetes. The Board notes that there are contradictory opinions as to whether the Veteran's hypertension, hypertensive retinopathy and erectile dysfunction are caused by the Veteran's diabetes. Although the VA examination reports including in the record have provided opinions as to whether the Veteran's diabetes caused the claimed disabilities, none of the VA examiners provided an opinion as to whether there had been an increase in severity of the claimed disabilities due to diabetes, which was not due to the natural progress of the disease. The most recent opinion provided by a private physician in January 2010, addressed this issue. He found that it was more likely than not that the severity of the Veteran's hypertension, overall retinopathy, and erectile dysfunction had increased due to his diabetes, over and above the increase in severity expected from natural progression alone. Therefore, after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected type II diabetes mellitus has caused in part, or at least aggravated his claimed hypertension, hypertensive retinopathy and erectile dysfunction. Service connection is thus granted for these disorders under 38 C.F.R. § 3.310(b). See Gilbert supra; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for hypertension, as secondary to the Veteran's service-connected type II diabetes mellitus, is granted. Entitlement to service connection for hypertensive retinopathy, as secondary to the Veteran's service-connected type II diabetes mellitus, is granted. Entitlement to service connection for erectile dysfunction, as secondary to the Veteran's service-connected type II diabetes mellitus, is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs