Citation Nr: 1032467 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 07-01 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for peripheral neuropathy, bilateral upper extremities. 2. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy S. Hoseth, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in February 2006, a statement of the case was issued in December 2006, and a substantive appeal was received in December 2006. The Board observes that the August 2005 rating decision also denied service connection for hypertension, coronary artery disease, and peripheral neuropathy, bilateral lower extremities. The Veteran's February 2006 notice of disagreement included the denial of entitlement to service connection for hypertension, coronary artery disease, and peripheral neuropathy, bilateral lower extremities. Thereafter, a December 2006 rating decision granted entitlement to service connection for hypertension and coronary artery disease, and an April 2009 rating decision granted entitlement to service connection for peripheral neuropathy, bilateral lower extremities. Thus, those issues are not currently in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran testified at a travel Board hearing before the undersigned Acting Veterans Law Judge in June 2010; a transcript of this proceeding is associated with the claims file. The issue of entitlement to special monthly compensation for loss of use of a creative organ was raised in the representative's July 2009 statement (in lieu of VA Form 646), 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's claimed peripheral neuropathy of the bilateral upper extremities is not causally or etiologically related to his active duty service or to a service-connected disability. 2. Erectile dysfunction is etiologically related to the Veteran's service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The Veteran's claimed peripheral neuropathy of the bilateral upper extremities was not incurred in or aggravated by his active duty service, nor may it be presumed to be incurred in or aggravated by such service, nor is peripheral neuropathy of the bilateral upper extremities proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2009). 2. The Veteran's erectile dysfunction is causally related to his service-connected diabetes mellitus, type II. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). I. Notice The notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in December 2004. This notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant post-adjudication notice by a letter dated in March 2006, which provided additional information regarding disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that any defects with respect to the timing of the VCAA notice was not prejudicial since the case was readjudicated in December 2006 via a statement of the case, thereby curing the defective notice error. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The contents of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). II. Duty to Assist The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records and VA treatment records are on file. There is no indication of relevant, outstanding records which would support the Veteran's claims. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran was afforded VA examinations in April 2005 and October 2008. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination reports are thorough and contain sufficient information to decide the issue on appeal. Thus, the Board finds that further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran to notify and assist him have been fulfilled with respect to the issue on appeal and the appellant is not prejudiced by a decision on the claim at this time. Laws and Regulations The Veteran is seeking entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and for erectile dysfunction. The Veteran contends that his disabilities are proximately due to or caused by, or have been aggravated by his service-connected diabetes mellitus, type II. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Peripheral neuropathy is deemed to be a chronic disease process under 38 C.F.R. § 3.309(a), and, as such, service connection may be granted under 38 C.F.R. § 3.307(a) if the evidence shows that it has manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. Separation from service is defined as the veteran's discharge date. There is no statutory or regulatory provision to allow for an extension of a presumption. In order to establish service connection for a claimed disorder, there must be competent evidence showing: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317, 1318 (Fed. Cir. 2005); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004). If the veteran fails to demonstrate any one element, denial of service connection will result. Further, service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). 38 U.S.C.A. § 5107 sets forth the standard of proof applied in decisions and claims for veterans benefits. A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A claim will be denied only if the preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background and Analysis The issues before the Board involve claims of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities and for erectile dysfunction. Specifically, the Veteran contends that his disabilities are secondary to his service-connected diabetes mellitus, type II. Historically, service connection was granted for diabetes mellitus, type II, in 2005. Initially, the Board notes that it has thoroughly reviewed all the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all the evidence submitted by the veteran or in his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380 (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 should 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 discuss its reasons for rejecting evidence favorable to the veteran). When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not consider and discuss that theory. Therefore, the Board will not discuss direct or presumptive service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). The Veteran was afforded a VA examination in April 2005. The examiner noted that the claims file was reviewed. During the examination, the Veteran reported being diagnosed with diabetes mellitus approximately six months ago. The Veteran reported that his erectile function was ok. He further reported pain in the palms of his hands and some tingling in his hands. The Veteran reported that he was told he had peripheral neuropathy, but he denied being on any kind of medication for peripheral neuropathy. Physical examination of the Veteran's extremities revealed that his reflexes were normal. The Veteran also had normal monofilament testing in the upper extremities. The examiner's diagnostic impression was that there was no peripheral neuropathy detected. The examiner concluded that there was no erectile dysfunction according to the Veteran's history, and there was no physical or objective evidence of peripheral neuropathy detected. In October 2008, the Veteran was afforded another VA examination. The examiner noted that the claims file was reviewed. During the examination, the Veteran reported erectile dysfunction. The Veteran reported a gradual onset of erectile dysfunction since 2000. The examiner opined that it was just as likely as not that the Veteran's erectile dysfunction was a result of his diabetes, given the time of onset, as well as the well known microvascular side effects seen with diabetes. With regard to the peripheral neuropathy, the Veteran reported a chronic and gradual onset of decreased sensation of the soles of both feet and a burning sensation of the toes. The Veteran denied receiving any current treatments for peripheral neuropathy. Physical examination of the Veteran revealed muscle strength of 5 for the upper extremities. The examiner found no motor impairments of the upper extremities. Detailed reflex examination of the peripheral nerve revealed: 2+ for left and right bicep reflex (C5-C6), 2+ for left and right tricep reflex (C6-C8), 2+ for left and right brachioradialis reflex (C5-C6), and 2+ for left and right finger jerk (C8-T1). The examiner found no muscle atrophy, no abnormal muscle tone or bulk, and no tremors, tics, or other abnormal movements. The examiner also found that no joints were affected by nerve disorder. The examiner did not diagnose the Veteran with peripheral neuropathy of the bilateral upper extremities. A VA treatment record from November 2005 states that the Veteran's peripheral neuropathy and erectile dysfunction are both very connected to his diabetes mellitus. In addition, a December 2005 treatment record states that the Veteran's current neurologic disease should be a consequence of his diabetes. (As already noted in the Introduction, an April 2009 rating decision granted entitlement to service connection for peripheral neuropathy of the bilateral lower extremities.) The Board notes that the Veteran's VA treatment records do not provide a diagnosis of peripheral neuropathy of the bilateral upper extremities. Although the Veteran attempts to link his claimed peripheral neuropathy of the bilateral upper extremities to his service- connected diabetes mellitus, type II, as a layperson, he is not competent to opine on medical matters such as the etiology of medical disorders. Accordingly, the lay statements as to etiology are entitled to no probative value. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997). Additionally, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1131; see also Degmetich v. Brown, 104 F.3d 1328 (1997). It is well-settled that in order to be considered for service connection, a claimant must first have a disability. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (holding that service connection may not be granted unless a current disability exists); see also Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this regard, the examiner from the April 2005 VA examination found no physical or objective evidence of peripheral neuropathy. In addition, the October 2008 VA examination also found no peripheral neuropathy of the bilateral upper extremities. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. In sum, there is no persuasive evidence showing peripheral neuropathy of the bilateral upper extremities in service, there is no competent evidence linking peripheral neuropathy of the bilateral upper extremities to service or a service-connected disability, and the April 2005 and October 2008 VA examinations found no evidence of current peripheral neuropathy of the bilateral upper extremities. In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With regard to the Veteran's claim of entitlement to service connection for erectile dysfunction, the Board notes that the Veteran's post-service medical records provide a diagnosis of erectile dysfunction. With regard to a nexus to a service- connected disability, the opinion from the October 2008 VA examination supports the Veteran's claim. The Board believes considerable weight must be afforded to the October 2008 VA medical opinion, which linked the Veteran's current erectile dysfunction to his service-connected diabetes mellitus, type II. As such, the Board finds that the evidence is at least in equipoise that the Veteran's erectile dysfunction is related to his service-connected diabetes mellitus, type II. The Board affords the Veteran the benefit-of-the-doubt and grants the claim for service connection for erectile dysfunction as secondary to service-connected diabetes mellitus, type II. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. To this extent, the appeal is denied. Entitlement to service connection for erectile dysfunction is warranted. To this extent, the appeal is granted. ____________________________________________ Robert E. O'Brien Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs