Citation Nr: 1314319 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-40 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for erectile dysfunction (ED), to include as secondary to the service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served honorably on active duty from March 1968 to April 1971. He served in the United States Army. He served in the Republic of Vietnam from September 1968 to July 1969. Notably, he was awarded the Combat Infantryman Badge, National Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal with four Bronze Service Stars, and Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the benefits sought on appeal. The Veteran presented testimony before a Decision Review Officer (DRO) in March 2011. The transcript has been associated with the claims folder. The Veteran withdrew his request for a hearing before the Board; consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(e). FINDINGS OF FACT Affording the Veteran all reasonable doubt, his ED is proximately due to or the result of the service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for ED as secondary to the service-connected diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that the action taken herein below is favorable to the Veteran, the Board finds that further discussion of notice and assistance is not required at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which contains additional VA treatment records dated between 2011 and 2012 reviewed by the RO in the February 2012 supplemental statement of the case. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Under 38 C.F.R. § 3.310(a) , 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. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-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. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that pre-aggravation baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b) . In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran contends that he is entitled to service connection for ED. Specifically, he asserts that the claimed condition is secondary to his service-connected diabetes mellitus. The Board has considered the Veteran's contentions in light of the evidence of record and the applicable law, and finds that the weight of such evidence is at least in approximate balance, and the Board therefore will grant service connection for ED on a secondary causation basis. 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). In this regard, in March 2009, the Veteran's primary care physician diagnosed the Veteran with ED. After physical examination and complete blood panel and urinalysis, his physician opined ED was more likely than not related to the Veteran's diabetes. The physician noted ED was a complication of diabetes mellitus, of which the Veteran was unaware. In April 2009, the Veteran was afforded a VA diabetes mellitus examination. The examiner noted the Veteran was unable to achieve erections with no possibility for penetration or ejaculation. The Veteran indicated that Levitra was not effective. Laboratory work revealed a low level of free testosterone. The examiner stated that low testosterone levels were likely related to the development of ED. The Veteran was afforded a VA genitourinary examination in May 2009. The Veteran's claims file was not available and not reviewed. The Veteran reported an inability to achieve erections for approximately one year duration. He took Levitra, which he indicated only worked 50 percent of the time. His phallus was uncircumcised with no lesions. There was no phimosis and the meatus was patent without blood or discharge. He had no penile plagues. His testes were descended bilaterally and nontender with no masses. They were nonatrophic bilaterally. The vas and epididymides were normal bilaterally without cysts. No reference was made to the low testosterone levels noted in April 2009. The examiner opined ED was likely due to a combination of hypertension, hyperlipidemia and tobacco abuse. The examiner opined ED was unlikely due to diabetes mellitus as his ED was vasculogenic in nature and thus, more likely due to hyperlipidemia and tobacco abuse. In September 2009, VA treatment providers counseled the Veteran that if his sugar was not well-controlled, ED could become irreversible. Based on the evidence of record, there can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, ordering another VA examination; however, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Service connection has been in effect for diabetes mellitus since May 2001. The Veteran has been diagnosed with ED. There are conflicting opinions as to the etiology of the Veteran's ED. The March 2009 opinion of the Veteran's primary care physician that ED was likely due to his diabetes mellitus was rendered after physical examination of the Veteran and complete blood panel and urinalysis. The April 2009 VA examiner did not indicate whether a review of the claims folder was performed. The examiner indicated that low testosterone levels were likely related to ED; however, diabetes mellitus was not ruled out as a possible cause. The May 2009 VA examiner failed to review the claims folder and did not take into account the March 2009 opinion of the Veteran's primary care physician or the findings of the April 2009 VA examiner. The May 2009 VA examination findings are rendered inadequate as the examiner failed to take into account the disability in relation to its history. 38 C.F.R. § 4.1. Finally, indications of VA treatment providers that if the Veteran's sugar was not well-controlled, ED could become irreversible, lends credence to the relationship between the Veteran's diabetes mellitus and his ED. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Hence, service connection for ED is warranted on a secondary causation basis. ORDER Entitlement to service connection for ED as secondary to the service-connected diabetes mellitus is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs