Citation Nr: 1237289 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 08-38 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for primary open angle glaucoma (POAG), to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active military service from March 1964 to September 1969 and from September 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana, that granted entitlement to nonservice-connected pension and denied service connection for posttraumatic stress disorder (PTSD), diabetes mellitus type 2, POAG, and erectile dysfunction. On his October 2008 Form 9, the Veteran requested a video conference hearing before a Board member. A December 2011 report of general information documented that the Veteran no longer wished to have a video conference hearing. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e). In a June 2011 rating decision, the RO granted service connection for PTSD and diabetes mellitus. As this represents a full grant of the benefit sought, these matters are no longer on appeal. The issues of entitlement to service connection for hypertension and traumatic brain injury as well as entitlement to a total disability rating based on individual unemployability for the period between October 2005 and November 2005 have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for erectile dysfunction to include as secondary to a service-connected disability 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 The Veteran has current POAG that was caused by his service-connected diabetes mellitus. CONCLUSION OF LAW The Veteran's POAG is proximately due to or the result of service-connected diabetes mellitus. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid a veteran in substantiating his claim. 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). In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating this claim. II. Service Connection Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. §§ 3.303(d), 3.307, 3.309. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service- connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service- connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA has amended 38 C.F.R. § 3.310 to limit the circumstances under which it will grant secondary service connection on the basis of aggravation. 71 Fed. Reg. 52,744 -52,747 (2006) (codified at 38 C.F.R. § 3.310 (2010)). The Board is granting service connection for the POAG on the basis that it was directly caused by service-connected diabetes mellitus, and not on the basis of aggravation. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Treatment records from VA Northern Indiana Health Care System-Fort Wayne Campus beginning in December 2004 document complaints of blurred vision/vision loss in both eyes and all distances. In March 2005, he reported that he noticed foggy vision at night for the past one to two years and was told that he had high pressure in the eyes in the past. He was diagnosed with definite glaucoma, likely POAG. In April 2005, he was diagnosed with POAG in both eyes based on nerve, visual field defect, and nerve fiber thinning. A current diagnosis of POAG has, therefore, been demonstrated. Although a review of service treatment records (STRs) do not show any treatment for or diagnosis of glaucoma while you were in the military, the evidence does not show, nor does the Veteran contend, that his POAG is directly related to service. Rather, the Veteran has contended that he has glaucoma is due to diabetes mellitus. A November 2005 VA treatment record that included a diagnosis of POAG, also included an assessment that the Veteran's vision complaints were likely related to a wide variety of systemic conditions, including repeated elevated blood sugar levels although he had not been diagnosed as having diabetes mellitus; polymyalgia rheumatica for which he was taking prednisone; and a hypertensive episode in the past. In January 2006, the Veteran reported complaints of being thirsty and having a blood sugar level of 311. He was given a diagnosis of new onset diabetes mellitus. At a September 2006 VA examination, the examiner reviewed the claims file and noted that there were no significant records. The examiner also reported a summary of the Veteran's relevant medical history. After examination, the examiner states that the Veteran had glaucoma in both eyes with normal visual acuity and field loss in the left eye. The examiner opined that it was as likely as not that the Veteran's glaucoma was related to diabetes. Glaucoma was not otherwise related to service. In the September 2006 VA examination notes, the examiner noted that the Veteran had been treated for glaucoma since March 2005 and diagnosed as having diabetes mellitus in the past 5-6 months. The examiner reported five random blood glucose test results between November 2005 and August 2006. The examiner opined that it was as likely as not (50 percent chance it was related, 50 percent chance it was not) that the Veteran's glaucoma was related to diabetes. In sum, current POAG has been demonstrated. The above described medical evidence is to the effect that this disability was, at least in part, caused by the Veteran's now service-connected diabetes mellitus. While the November 2005 VA treatment record and the September 2006 VA examiner's opinion are not accompanied by any specific explanations or rationales, there are no medical opinions contrary to this evidence pertaining to a relationship between the current POAG and the now service-connected diabetes mellitus. A formal diagnosis of diabetes mellitus was not made until after the diagnosis of POAG, however, the record reflects that the Veteran experienced elevated blood sugar readings prior to being formally diagnosed diabetes mellitus. The November 2005 record that included an initial diagnosis of POAG related it, in part, to elevated blood sugar readings. The September 2006 VA examiner had included the results of the Veteran's blood sugar levels beginning in November 2005 and reviewed the Veteran's claims file prior to providing an opinion. Thus, in light of this evidence and resolving reasonable doubt in favor of the Veteran, the Board concludes that the criteria for service connection for the currently diagnosed POAG have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. ORDER Entitlement to service connection for POAG is granted. REMAND In his November 2006 claim, the Veteran indicated that his erectile dysfunction was due to his diabetes mellitus. An October 2008 VA treatment record noted complaints of erectile dysfunction that had been ongoing since a few months after he was diagnosed with diabetes mellitus. Since he filed his claim, service connection has been granted for diabetes mellitus, coronary artery disease with congestive heart failure, and PTSD. See March and June 2011 rating decisions. The RO scheduled the Veteran for a VA examination on multiple occasions to obtain a medical opinion regarding the etiology of the claimed erectile dysfunction; however, the Veteran failed to report each of the examinations. When a claimant fails without good cause to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a), (b). The Veteran was scheduled for a VA examination in August 2009; however, he was reportedly unable to attend the examination due to being out of state for a family emergency. VA rescheduled the examination in October 2009, but the Veteran reported that he would be out of state until December 2009. In February 2010, VA attempted to contact him via telephone, but his wife indicated that he was not there. She stated that the Veteran was in a private hospital and too ill to report for the February 2010 examination. The Veteran subsequently contacted VA, updated his address, and requested a new medical examination. The Veteran was unable to attend the March 2010 VA examination because he had just been released from the hospital and was unable to travel for 30 days. In April 2010, he informed VA that he was too ill to report for the examination. The Veteran has reported good cause for not attending the variously scheduled VA examinations; however, the record is not clear as to whether the Veteran is still too ill to report for a VA examination. VA has an obligation to tailor its assistance to the specific needs of Veterans. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting the special obligations that attach to scheduling examinations for incarcerated veterans). The Veteran's representative has suggested that VA might need to afford the Veteran an examination at his home or by telephone. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and clarify whether he would be able to attend a newly scheduled VA examination. 2. After the completion of #1 above, either schedule the Veteran for a VA examination or arrange to have the Veteran evaluated by telephone or at his home to determine the etiology of the claimed erectile dysfunction. The claims file, to include a copy of this Remand, must be made available to and reviewed by the examiner/reviewer in providing the opinion; consideration of such should be reflected in the completed examination report or in an addendum. The examiner/reviewer should offer an opinion as to the following: a) Whether it is at least as likely as not (at least a 50 percent probability) that erectile dysfunction is proximately due to, or caused by, a service-connected disability to include diabetes mellitus, type II; coronary artery disease with congestive heart failure; or PTSD. b) Whether it is at least as likely as not that erectile dysfunction was aggravated (permanently worsened beyond the natural progression of the disease) by the Veteran's service-connected disabilities to include diabetes mellitus, type II; coronary artery disease with congestive heart failure; and PTSD. (This claim was received prior to regulatory changes imposing new restrictions on secondary service connection based on aggravation). A rationale for all opinions should be provided. The examiner/reviewer should specifically address the Veteran's lay assertions that his erectile dysfunction began with a few months of being diagnosed with diabetes mellitus. The examiner/reviewer must provide reasons for each opinion. If the examiner/reviewer is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner/reviewer is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner/reviewer rejects the Veteran's reports, the examiner must provide a reason for doing so. If the reviewer needs additional information from the Veteran beyond that which can be determined based upon a review of the claims file, then he or she may call the Veteran to obtain any necessary information. If a follow-up phone call is not necessary, then the reviewer should so state. 3. The AOJ should review the examination report to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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 that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs