Citation Nr: 1311697 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-18 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus. 2. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from February 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records that are pertinent to the present appeal. The Board is granting the Veteran's claims. Therefore there is no prejudice to the Veteran in the Board's initial review of this evidence. The Veteran testified at a hearing in October 2012 before the undersigned. A copy of the transcript has been associated with the claims file. After the hearing, the Veteran submitted a waiver of his right to have the RO initially consider additional evidence. 38 C.F.R. §§ 20.800, 20.1304(c) (2012). However, no additional evidence was attached to the waiver. The record was held open for an additional 30 days to allow him time to submit additional medical evidence. Later in October 2012, he submitted a statement from Dr. M. B., his private physician. This was not accompanied by a waiver of initial RO consideration. It is unclear whether the Veteran intended to waive initial RO consideration of Dr. M. B.'s letter. However, there is no prejudice to the Veteran in the Board's adjudication of his claims because this decision is favorable to him. The Veteran filed a claim for a total rating based upon individual unemployability (TDIU) in May 2012 that 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 of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has erectile dysfunction that is caused by his service-connected diabetes mellitus. 2. The Veteran's erectile dysfunction results in loss of use of a creative organ. CONCLUSIONS OF LAW 1. The Veteran's erectile dysfunction is secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). 2. The criteria for special monthly compensation based on loss of use of a creative organ are met. 38 U.S.C.A. §§ 1114(k), 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.350(a)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In addition, 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. 38 C.F.R. § 3.303(d) (2012). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). 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. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's VA treatment records reflect a diagnosis of erectile dysfunction and his diabetes mellitus is service-connected. The first two elements of a secondary service connection claim are satisfied. Wallin, 11 Vet. App. at 512. At his October 2012 hearing, the Veteran testified that his erectile dysfunction was caused by his service-connected diabetes mellitus. He stated that he was diagnosed with diabetes mellitus approximately 10 years ago, and was first diagnosed with erectile dysfunction five to six years ago. The Veteran is competent to report when he was diagnosed with these medical conditions. Layno v. Brown, 6 Vet. App. 465 (1994). Further, his statements are confirmed by the record and are credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). His statements provide probative evidence in support of his claim. After his hearing, the Veteran submitted an October 2012 letter from Dr. M. B., his private physician who treats him for diabetes mellitus and its complications. Dr. M. B. stated that the Veteran's erectile dysfunction was caused by his diabetes mellitus. This statement provides probative evidence in favor of the Veteran's claim. The remaining VA and private medical records do not address the question of whether the Veteran's erectile dysfunction is caused by his service-connected diabetes mellitus. There is no probative evidence of any other intercurrent cause for the Veteran's current erectile dysfunction. The U. S. Court of Appeals for Veterans Claims has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Although further medical inquiry could be undertaken towards development of the claim, the evidence supports a finding of service connection for erectile dysfunction. 38 U.S.C.A. § 5107(b). Service connection for erectile dysfunction is granted on a secondary basis. 38 C.F.R. § 3.310. Special Monthly Compensation Under the applicable criteria, SMC under the provisions of 38 U.S.C.A. § 1114(k) is payable if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 C.F.R. § 3.350(a) (2012). VA regulations provide that loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. 38 C.F.R. § 3.350(a)(1). The General Counsel has opined that SMC is awarded for either anatomical loss or loss of use of a creative organ. This opinion indicates that "the purpose" of special monthly compensation for loss or loss of use of a creative organ "is to account for psychological factors as well as the loss of physical integrity." VAOPGCPREC 93-90; VAOPGCPREC 5-89. As noted above, the Board grants service connection for erectile dysfunction in this decision. The evidence of record shows that the Veteran has been prescribed medications for erectile dysfunction. However, at his October 2012 hearing, he competently and credibly testified that the medications did not work. The record indicates that the Veteran is unable to reproduce because of his erectile dysfunction and, therefore, has loss of use of a creative organ. Resolving all reasonable doubt in the Veteran's favor, the Board finds the evidence supports entitlement to special monthly compensation based on loss of use of a creative organ. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). Given the granting of the benefits claimed, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the claimant. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2010). ORDER Service connection for erectile dysfunction is granted. Special monthly compensation based on loss of use of a creative organ is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs