Citation Nr: 1300776 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-05 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity prior to July 17, 2009; and to a disability evaluation in excess of 20 percent from July 17, 2009. 2. Entitlement to an initial disability evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity prior to July 17, 2009; and to a disability evaluation in excess of 20 percent from July 17, 2009. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected Type II diabetes mellitus; or alternatively, as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to December 1970, including service in the Republic of Vietnam from November 1969 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision, by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for peripheral neuropathy, mild, right lower extremity; and peripheral neuropathy, mild, left lower extremity; and assigned initial 10 percent evaluations, effective September 25, 2007, for each extremity. Also on appeal is a rating decision, dated in August 2009 and issued in September 2009, which denied entitlement to service connection for erectile dysfunction; and which granted increased evaluations to 20 percent for the service-connected peripheral neuropathies of the lower extremities, effective July 17, 2009, for each extremity. In September 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's claims for increased evaluations for service-connected peripheral neuropathies of the lower extremities, the Board finds a more recent examination, to include appropriate neurological testing, is necessary for the Board to properly adjudicate these claims. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of his service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability and the available evidence is too old or that the current rating may be incorrect. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). His most recent VA peripheral neuropathy examination was in July 2009. Since then, in an April 2012 VA Form 646, Statement of Accredited Representative in Appealed Case, the Veteran's representative has asserted that the Veteran's symptoms are much more severe than the results of his examination indicate. Hence, a remand is required to provide the Veteran with VA examination and medical opinion to assess the nature and severity of his peripheral neuropathies of the lower extremities. With regard to his claim for service connection for erectile dysfunction, the Board notes that there are multiple theories of entitlement, raised by the record, upon which the Veteran may base his claim for service connection A claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. at 86. This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). Upon the filing of a claim for benefits, VA generally must investigate the reasonably apparent and potential causes of the Veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing. See Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet. App. 545, at 552 (characterizing Schroeder as holding that "the duty to assist applies to the entire claim, which might require assistance in developing more than one theory in support of that claim"); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed.Cir.2001); Brokowski, 23 Vet. App. at 85. Overall, the scope of the claim will be based on a sympathetic assessment of "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim," i.e., the information gathered upon investigation. Clemons, 23 Vet. App. at 5. The central inquiry before the Board is whether the Veteran has erectile dysfunction that: 1. Is caused by his already service-connected disorders, to include Type II diabetes mellitus and/or PTSD, or; 2. Is directly related to military service. A Veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). The burden is on VA to rebut the presumption soundness, by clear and unmistakable evidence, both that the disorder at issue pre-existed service, and was not aggravated by service. VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A disability can also be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). Secondary service connection may be established by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b), effective October 10, 2006. See 71 Fed. Reg. 52,744-52,747 (September 7, 2006). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate a disorder with a service-connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The available pre-service treatment records clearly show treatment for "gross hematuria," "non-specific urethritis," "acute glomerulonephritis," and "cystitis." The service treatment records indicate on pre-induction history and examination, the Veteran reported experiencing "high blood pressure," "frequent or painful urination," "kidney stone or blood in urine," "depression or excessive worry," and "bed wetting." It was noted on examination that the Veteran had kidney complications at the age of 15, and had blood in his urine and non-specific urethritis prior to his induction. A June 1969 treatment record reflects complaints of kidney trouble and difficulty urinating. The service treatment records are otherwise without findings related to the genitourinary system including erectile dysfunction. On VA examination in March 1971, the examiner noted essentially negative genitourinary system examination results. VA treatment records show that in 2001 the Veteran complained of erectile dysfunction, and a diagnosis was confirmed by a VA urologist in February 2002. The February 2002 VA urologist noted that the erectile dysfunction was likely multifactoral, including vasculogenic and possibly psychogenic issues. In July 2005, the Veteran was diagnosed with Type II diabetes mellitus. In VA examinations dated in March 2006, August 2008 and July 2009, the examiners have opined that the Veteran's erectile dysfunction is not a complication of diabetes, nor has the condition been worsened or increased by the diabetes. In September 2008, a private practitioner from "Indian River Medical Center" provided a statement, opining that the Veteran was being treated for hypertension and erectile dysfunction, which can be a direct result of his diabetes." The Board finds the language used in this opinion to be too speculative in nature to accord the opinion any weight in favor of the claim, as it did not explain the conclusion, and did not address the relevant provisions regarding aggravation provided in 38 C.F.R. § 3.310. However, the Board also notes that the VA examiners failed to provide opinion as to the likelihood of a relationship between the Veteran's service-connected PTSD (including any medications taken for such disorder) and his erectile dysfunction. Moreover, these reports are inadequate as they failed to discuss the Veteran's pre-service and service treatment records, and did not contain opinion on the likelihood of a direct relationship between the Veteran's erectile dysfunction and his military service. Moreover, the Board notes that the Veteran and his spouse have provided lay statements as to the nature of his erectile dysfunction and its impact on his daily life and on their marriage. However, the examiners failed to address these lay contentions. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The pre-service medical record indicates that the Veteran had a history of genitourinary problems prior to his entry into military service albeit erectile dysfunction is not noted. Further, the service treatment records show genitourinary problems. Also, the Veteran has been diagnosed with erectile dysfunction and is currently service-connected for Type II diabetes mellitus and for PTSD, which satisfies the first and second elements of a claim for secondary service connection. Wallin, 11 Vet. App. at 512. However, sufficient opinion has not been obtained to determine the etiology of any of the erectile dysfunction on the basis of in-service incurrence, or on the basis of aggravation by service-connected disability, to include PTSD. See also 38 U.S.C.A. § 5103A(d); 38 C.F.R. §3.310 (secondary service connection); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (re: secondary service connection); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (requirement under the VCAA for warranting a VA examination, that the evidence "indicates" that the Veteran's disability "may" be associated with the veteran's service, is a low threshold). Therefore, the Veteran must be scheduled to undergo further examination and opinion to ascertain the nature and etiology of his erectile dysfunction. The United States Court of Appeals for Veterans Claims (Court) has held that the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). When the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, to ensure completeness of the record, the RO/AMC should attempt to obtain any outstanding VA and private medical records, if such records exist. The VA examination reports show that the Veteran underwent an elective vasectomy at the "St. Joseph Hospital" in Flint, Michigan in 1972 or 1975; however, no attempt has been made to retrieve records from this facility. As noted, a private medical opinion was submitted in September 2008 from Indian River Medical Center; however, no attempt has been made to obtain further records or clarification and explanation of the opinion from this facility. Also, in a statement received in December 2009, and in his hearing testimony, the Veteran has reported that he receives treatment at the Community Based Outpatient Clinic (CBOC), in Gaylord, Michigan, and at the Saginaw, Michigan VA Medical Center (VAMC). The electronic Virtual VA records file was reviewed and did not reveal any VA treatment records pertinent to this appeal. The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, VA must obtain any outstanding records. See 38 U.S.C.A. § 5103A (b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must ascertain if the Veteran has received any VA, non-VA, or other medical treatment that is not evidenced by the current record, to include treatment records from St. Joseph Hospital, Indian River Medical Center, the VA CBOC in Gaylord, and the Saginaw VAMC. The RO/AMC should advise the Veteran that further explanation with adequate rationale by the private practitioner who provided the September 2008 nexus opinion would be helpful in establishing his claim for service connection. The RO/AMC must provide the Veteran with the necessary authorizations for the release of any non-VA treatment records not currently on file. The RO/AMC must obtain these records and associate them with the claims folder. If the records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. The RO/AMC must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All responses received should be associated with the claims file. It is not necessary for records existing in the Virtual VA system to be printed. 2. After securing any VA or private treatment records (or receiving a negative response), RO/AMC must arrange for a VA examination with an appropriate clinician to ascertain the severity of the service-connected peripheral neuropathies of the lower extremities and their impact on his employability and daily activities. The question of the source or etiology of the disorders is only relevant to the extent that it may provide information as to the severity of the disorders. A copy of this remand and all relevant pre-service, in-service and post-service treatment records, along with all pertinent lay statements, must be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. All indicated tests must be conducted to ascertain the nature and degree of paralysis of any of the affected nerves of both legs. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the specific supporting evidence of record. The examiner must provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and may result in a return of the claim to the examiner. 3. The Veteran must also be afforded an appropriate examination to determine the etiology of the erectile dysfunction. The examiner should include a discussion of the historical evidence, and any current pathology found, regarding the genitourinary system, along with the review of the reported symptomatology. A copy of this remand and all relevant pre-service, in-service and post-service treatment records, along with all pertinent lay statements, must be made available to the examiner, to include any pertinent records in Virtual VA. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner should answer the following questions: a) Is any diagnosed erectile dysfunction caused or, alternatively, aggravated (a chronic worsening of the underlying condition) as a result of any service-connected disability, to specifically include PTSD and/or medications taken for PTSD? The examiner is reminded that the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing symptoms during or after service, reporting to sick call, and undergoing treatment. b) If the Veteran is determined not to have any erectile dysfunction that was proximately caused or aggravated by a service-connected disability, the examiner should state whether it is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran has erectile dysfunction that had its onset in service or is otherwise etiologically related to service to include due to any demonstrated genitourinary disorders shown on entrance. c) The examiner should be notified that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. d) The examiner should be notified that the term "aggravation" is defined as a permanent worsening of the pre-existing or underlying condition, as contrasted to temporary or intermittent flare-ups of symptoms which resolve with return to the previous baseline level of disability. The examiner must note that, by regulation, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the specific supporting evidence of record. The examiner must provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and may result in a return of the claim to the examiner. 4. After completion of the above and any additional development deemed necessary, the RO/AMC should review the issues on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).