Citation Nr: 1313455 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 09-27 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD) including as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction including as secondary to service-connected diabetes mellitus and/or medications prescribed to treat service-connected psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1965 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2012, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the appellant's claims of entitlement to service connection for CAD and erectile dysfunction, including as due to service-connected diabetes mellitus or medications used to treat his service-connected psychiatric disability. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2012). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in February 2013. In March 2013, the Board requested clarification of the October 2012 VHA medical opinion and an Addendum opinion was received later that month. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, CAD is due to the Veteran's service-connected diabetes mellitus. 2. Resolving all doubt in the Veteran's favor, erectile dysfunction is due to the Veteran's service-connected diabetes mellitus. CONCLUSIONS OF LAW 1. The criteria to establish service connection for coronary artery disease as due to service-connected diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. The criteria to establish service connection for erectile dysfunction as due to service-connected diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to grant service connection for CAD and erectile dysfunction herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran asserts that he has CAD and erectile dysfunction due to service-connected diabetes or resulting from medications used to treat his service-connected psychiatric disability. He has also variously asserted that his disorders are due to his exposure to Agent Orange. Thus, he contends that service connection is warranted for CAD and erectile dysfunction. Upon review of the record, the Board finds that the evidence is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for CAD and erectile dysfunction. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, case law has established that lay 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such as cardiovascular-renal disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (court) has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of coronary and urologic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for, CAD and erectile dysfunction. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2012). The VA General Counsel has determined that the regulatory definition requires that an individual actually have been present on the land mass of the Republic of Vietnam. VAOPGCPREC 27-97; 62 Fed.Reg. 63604 (1997). Specifically, the General Counsel has concluded that in order to establish qualifying service in Vietnam, a veteran must demonstrate actual duty or visitation in the Republic of Vietnam. Id. Service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.307, 3.309(e) (2012). The enumerated diseases include ischemic heart disease but do not include erectile dysfunction. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313 (2012). Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). Here, the objective medical evidence fails to demonstrate that the Veteran served in the Republic of Vietnam or was exposed to Agent Orange. He has indicated, and records confirm, that he served aboard the USS BENNINGTON but did not set foot in-country. In his March 2011 written statement, the Veteran stated that, at least on one occasion, he handled large drums of defoliant. In an October 2001 response to the RO's inquiry, the National Personnel Records Center (NPRC) provided cruise dates (service records) when the USS BENNINGTON was in the official waters of the Republic of Vietnam. In July 2008 and February 2011 responses to the RO's request for clarification, the NPRC indicated that it was unable to determine if the Veteran served in the Republic of Vietnam, although he served on the USS BENNINGTON that was in official waters of the Republic of Vietnam. In a May 2009 response to the RO's inquiry, the Joint Services Records Research Center (JSRRC) found no evidence that Navy or Coast Guard ships transported tactical herbicides from the United States to the Republic of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transported tactical herbicides. The JSRRC was unable to verify that a shipboard veteran was exposed to tactical herbicides based on contact with aircraft that flew over Vietnam or equipment used in that country. Thus, the JSRRC was unable to provide evidence to support the Veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. Based on the foregoing, then, there is no basis to find that the Veteran had in-country service in the Republic of Vietnam or exposure to herbicides. However, the evidence of record establishes a nexus between the Veteran's CAD and erectile dysfunction and his service-connected diabetes mellitus. Service connection for diabetes mellitus was granted by the RO in a November 2001 rating decision. Service treatment records do not reflect a diagnosis of, or treatment for, CAD or erectile dysfunction. When examined for release from active duty in March 1968, the Veteran's cardiovascular and genitourinary systems were normal. Post-service, in his July 2009 substantive appeal, the Veteran reported that his diabetes mellitus was diagnosed by a private physician in approximately 1983 or 1984 and, in 1984 or 1985, he started to receive treatment at the VA medical center in Fresno, California, prior to his diagnosis of CAD. The RO was unable to obtain these VA treatment records. Available VA and non-VA medical records, dated since 1999, show that the Veteran had a history of myocardial infarction status post coronary artery bypass graft in 1992 and, in 1993, he was diagnosed with diabetes mellitus. In April 2005, erectile dysfunction was reported and, in July or August 2005, medication was prescribed for the Veteran's depression. A July 2007 VA cardiac examination report was prepared by a physician's assistant. It was noted that the Veteran had CAD that was diagnosed at the same time as diabetes mellitus. He also had a long term known history of continued cigarette smoking. In the VA examiner's opinion, given the Veteran's diagnosis of CAD at the same time as diabetes, the CAD would not be secondary to diabetes mellitus, type II, but would be much more likely due to other factors, including cigarette smoking. A July 2007 genitourinary examination report was also prepared by the physician's assistant. The Veteran's history of erectile dysfunction beginning about one year earlier was noted. Upon examination, the diagnosis was erectile dysfunction. The VA examiner commented that as the Veteran's diabetes was under very good control, his erectile dysfunction was more likely than not caused by his continued smoking, which was a much greater risk factor at that time. In a July 2007 psychiatric examination report, the physician-examiner noted the Veteran's history of CAD and erectile dysfunction and stated that "[t]hese are almost surely secondary conditions to the [Veteran's] diabetes." The August 2007 rating decision on appeal granted service connection for a psychiatric disorder. According to an October 2007 VA mental health clinic record, a psychiatrist indicated that it was "well know[n]" that diabetes was a significant risk factor for coronary artery disease. Thus, it was more than likely, that the Veteran's diabetes was the cause of his CAD and myocardial infarction. In October 2012, the Board requested a VHA opinion from a medical specialist regarding whether the Veteran had CAD or erectile dysfunction that started in service or was otherwise related to his military service. If not, the VHA physician was requested to provide an opinion as to whether the Veteran had CAD or erectile dysfunction as due to his service-connected diabetes mellitus or psychiatric disability (including any medications for such disability). In a February 2013 report, a VA physician stated that "[c]oronary artery disease is extremely common in people with diabetes and the hyperglycemia can be present for many years prior to the diagnosis of diabetes..., so I agree that they may be related." The VHA medical specialist further indicated that "[e]rectile dysfunction also is a known complication of diabetes and can be present at diagnosis as well. I agree that the erectile dysfunction can be related to the diagnosis of diabetes mellitus." It was noted that the Veteran was not started on psychiatric medication until after he developed erectile dysfunction in approximately 2005. In March 2013, the Board requested that the VHA medical specialist clarify her February 2013 opinion. Specifically, the Board requested that the VHA physician state whether is at least as likely as not that CAD and erectile dysfunction were caused by the Veteran's service-connected diabetes mellitus. If not, the physician was requested to opine as to whether it was at least as likely as not that CAD and erectile dysfunction were aggravated by the Veteran's service-connected diabetes. In a March 2013 medical opinion, the VHA physician reiterated that CAD was extremely common in people with diabetes and the hyperglycemia can be present for many years prior to the diagnosis of diabetes. The VHA physician concluded that they may be at least as likely as not related. This medical specialist reiterated that erectile dysfunction was also a known complication of diabetes and as least as likely as not can be caused as a result of diabetes mellitus. The VHA physician "agree[ed] that the [the Veteran's] erectile dysfunction can be related to the diagnosis of mellitus at least as likely as not." It was noted, again, that the Vetran did not start taking psychiatric medication until after he developed erectile dysfunction in approximately 2005. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The record shows that the Veteran has CAD and developed erectile dysfunction in approximately 2005, prior to being started on psychiatric medication. Here the medical evidence is in equipoise. The VHA examiner opined that the Veteran's CAD and erectile dysfunction were at least as likely as not related to the diagnosis of his service-connected diabetes mellitus. This opinion is entirely consistent with those expressed by VA psychiatrists in July and October 2007. However, the July 2007 VA examiner concluded that the Veteran's CAD and erectile dysfunction were not secondary to service-connected diabetes mellitus. Given the medical expertise of the VHA examiner, and the VA psychiatrists, the Board is persuaded that the evidence supports the Veteran's claims and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for coronary artery disease and erectile dysfunction is warranted and the Veteran's claims will be granted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.310. ORDER Service connection for coronary artery disease as due to service-connected diabetes mellitus is granted. Service connection for erectile dysfunction as due to service-connected diabetes mellitus is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs