Citation Nr: 1301713 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 10-18 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left ankle disability, to include venous stasis ulceration, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1967 to December 1969, to include combat duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was afforded a Travel Board hearing in October 2012. A transcript is of record. At this hearing, the Veteran noted that he was not satisfied with his current rating for service-connected diabetes, and that he should be granted a total disability evaluation based on individual employability as due to service-connected disabilities (TDIU). The Veteran was denied a higher rating for diabetes in August 2011, and there is no record of a timely disagreement filed with this action. This issue is not before the Board. Despite this, the Veteran has clearly put forth a new claim for a higher rating for diabetes as well as for a TDIU. These claims, not being before the Board, are referred to the RO for appropriate action. The Veteran's entire claims file, including the portion contained in the electronic "Virtual VA" system, has been reviewed. FINDINGS OF FACT 1. The Veteran's ED was at least as likely as not caused by service-connected diabetes. 2. The Veteran's left ankle venous stasis ulceration was at least as likely as not aggravated by service-connected diabetes. CONCLUSIONS OF LAW 1. Service connection for ED is warranted. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Service connection for left ankle venous stasis ulceration is warranted. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the 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 or disease 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). 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran in this case is in receipt of service-connected compensation benefits for diabetes, and he contends, essentially, that this condition has caused or aggravated his ED. Furthermore, the Veteran asserts having skin eruptions in his left lower extremity at the ankle as a consequence of his service in Vietnam. The Veteran reports having treatment shortly after service discharge in 1973 where there was an eruption of the skin in the ankle, and he states that a physician told him there were bony residuals in the ankle due to a distant trauma. There are no records from this physician on file, and the Veteran has reported that this physician has not been in practice for many years. The Board notes that the Veteran has had wound treatment over the course of the last several years for ulcers on the left lower extremity near the ankle. As wound management is a primary concern for diabetics, and as the Veteran is service-connected for diabetes, the record raises a claim on a secondary basis. The Veteran was scheduled for a VA examination in February 2008 to address both of these claims; however, he did not report at his scheduled time. The Veteran has asserted that he was not notified of an appointment, and that he would have attended had he been informed. This is a credible assertion. Indeed, the Veteran was scheduled for a VA examination for his claim for an increase in rating for service-connected diabetes subsequent to the scheduled 2008 examination, and he reported to that examination after being notified. Additionally, the Veteran was informed of his hearing with the undersigned and had no trouble reporting to that appointment at the scheduled time. Despite the Veteran's "good cause" in missing his examination, as this decision represents a full grant of the benefits sought, there is no need to afford a new examination. Indeed, the RO noted that the principal reason that service connection was not granted for ED was the lack of a diagnosis of this condition. It was noted that such a diagnosis could have been obtained via VA examination. Essentially, it was implicit that ED is a known complication of diabetes; however, without a current, and chronic disability, the first and most basic element of a claim for service connection is not met. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran, as a layperson, is competent to report on that which comes to him through his senses. In this regard, his claim of a loss of erectile power is something on which he may perceive, and which he may competently address. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). In addition to his own assertion, he has submitted the testimony of his wife, who has stated that the Veteran has not been able to engage in sexual intercourse since 2005 due to an inability to gain and maintain and erection. This is something which she may competently address, and there is no doubt as to her credibility in presenting the written testimony. Id. Essentially, as was noted by the Veteran's representative in presenting testimony at the Travel Board hearing, ED is well-known to be a consequence of diabetes, and that had such a diagnosis been substantiated by the RO, the likelihood of an appeal being needed would be minimal. The Board is satisfied that the preponderance of the evidence supports a finding of current ED, and while there is no etiological opinion directly linking the condition to diabetes, as this is a complication of diabetes that is well-known and established in medical literature, the preponderance of the evidence supports a finding that the Veteran's diabetes, at least as likely as not, caused the onset of ED. With regard to the Veteran's claimed left ankle condition, it is noted that the record does not contain any indication of a traumatic injury to the ankle having any sequela. The Veteran served in combat in Vietnam, and accordingly, there is no doubt that he injured his ankle in that service (38 U.S.C.A. § 1154); however, in the VA clinical reports, particularly those records of treatment dated in 2011, the Veteran only had post-service orthopedic complaints in his knees. A July 2011 clinical report does, however, contain a complaint of recurrent venous stasis ulcers, and it was noted that the Veteran had venous insufficiency in his left lower extremity. Prior to this, from December 2006 until June 2007, the Veteran visited a private wound care center to address a stasis ulcer in the left ankle. It is apparent that the treatment provided by this facility allowed for a closure of the wound in 2007; however, given these reports and the later 2011 complaint noted in the VA records, it is clear that the claimed disability manifests as ulceration in the left lower extremity near the ankle, and that it is recurrent in nature. Thus, a chronic disability for which service connection can be granted does, in fact, exist, although it is not orthopedic in nature. Accordingly, the Board will turn its attention to the venous stasis ulceration on the left ankle. As noted, the Veteran did not report to his examination to address his contended ankle ulceration disorder. At the Veteran's Travel Board hearing, however, the undersigned noted that as the Veteran's diabetes was service-connected, and as ulceration was the manifestation noted in the medical history, that a claim based on a secondary theory of entitlement was raised by the record. As with the Veteran's ED, ulcerative complications in the lower extremities are well-known consequences of the diabetic process. The Veteran's venous stasis ulceration, as noted by his diagnosis of venous insufficiency, is a consequence of a lack of venous output. Despite this, as the Veteran has had recurrent bouts of ulceration between 2006 and 2011, and as there has been documented lengthy healing periods requiring compression stocking usage, wound debridement, and usage of an Unna's boot, the record does suggest that the co-morbid diabetes does play a role in hindering normal recovery of the venous stasis ulceration. That is, based on the lengthy wound consultations in 2006 and 2007, along with the Veteran's assertions in 2011 of the ulceration near the ankle recurring, the Board is able to conclude that it is at least as likely as not that the diabetes aggravates the venous ulceration beyond the natural course of the disease process. Based on the above, the Board determines that the Veteran experiences left ankle ulceration aggravation and ED as a consequence of service-connected diabetes. Accordingly, service connection will be granted for these disorders. ORDER Entitlement to service connection for ED is granted. Entitlement to service connection for left ankle venous stasis ulceration is granted. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs