Citation Nr: 1316563 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 10-03 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for erectile dysfunction as secondary to the Veteran's service connected diabetes mellitus type II. 2. Entitlement to service connection for bilateral upper and lower peripheral neuropathy as secondary to the Veteran's service connected diabetes mellitus type II. 3. Entitlement to service connection for depression to include as secondary to the Veteran's service connected diabetes mellitus type II, bilateral hearing loss and tinnitus, or acne. 4. Entitlement to service connection under 38 U.S.C. § 1151 a back and neck disability (claimed as a misdiagnosis and lack of treatment for neck and back condition). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1969 to January 1972. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. The issues of service connection for bilateral upper and lower peripheral neuropathy, service connection for depression, and entitlement to benefits under 38 U.S.C. § 1151 are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The weight of the evidence establishes that the Veteran currently has erectile dysfunction secondary to his service connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder. 38 C.F.R. § 3.310(a). Secondary service connection may be found in certain instances in which a service-connected disability aggravates another condition. The Veteran is currently seeking service connection for erectile dysfunction (ED), which he believes is secondary to his service connected diabetes mellitus, type II (DMII) associated with herbicide exposure in Vietnam. In order to establish service connection, the record must contain: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence of record does not establish the Veteran's ED is connected to his military service on a direct basis. Service treatment records were reviewed and do not establish the Veteran made any complaint of, or sought any treatment for ED during military service. In addition, post-service treatment records do not reflect the Veteran made any complaint of ED until 2007, over three decades after he separated from military service. However, the evidence of record does establish the Veteran's current ED is service connected secondary to his service connected DMII. In February 2008 the Veteran was provided with a VA examination for his DMII condition. At this examination the Veteran reported experiencing ED, including inability to achieve an erection, for the previous year. The examiner personally interviewed the Veteran, reviewed his claims file, and personally examined the Veteran. He opined the Veteran had ED secondary to DMII. As such, the Board finds this examination provides highly probative evidence that the Veteran has ED secondary to his service-connected DMII. His ED secondary to DMII was also noted in a VA treatment record from March 2008. The Board notes the Veteran's more recent DMII VA examination, from March 2011, did not include ED in a list of potential diabetic complications found. However, the Court of Appeals for Veterans Claims (Court) has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In addition, VA regulations provide if the evidence is at least in relative equipoise, reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 3.102. As such, the Board finds that the February 2008 VA examination provides probative evidence that the Veteran currently has ED which is secondary to his service-connected DMII. Therefore, the Board finds the Veteran's claim for service connection for ED as secondary to DMII is granted. Duties to Notify and Assist In light of this result, a detailed discussion of VA's various duties to notify and assist regarding the Veteran's claim for service connection for erectile dysfunction is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER Service connection for erectile dysfunction is granted. REMAND The Veteran is also seeking service connection for bilateral upper and lower peripheral neuropathy and depression. The Board notes on November 28, 2012 additional VA treatment records were submitted to the Veteran's file on the Virtual VA system. These additional files include treatment records through October 2012, and are non-duplicative and pertinent to the Veteran's claims. For example, a record from October 2012 indicates the Veteran's depression screen was negative; however depression was included in his problems list. In addition, a diabetic sensory foot exam was performed that same month which was normal; however some tingling of the heels was noted. The Board notes the Veteran's claim was not certified to the Board until February 2013. As such, the Veteran's file was still before the RO when the additional evidence was submitted. VA regulations provide that if additional evidence is received by the agency of original jurisdiction after the statement of the case had been issued then a supplemental statement of the case will be issued addressing the additional evidence. However, in this case the most recent Statement of the Case, from December 2012, indicates the RO only considered VA treatment records through July 2010. As such, the Board finds the additional new, non-cumulative evidence was submitted to the RO before certification to the Board but was not addressed in a supplemental statement of the case. As such, remand is required so the RO may consider the new evidence and issue a new statement of the case. Therefore, the Veteran's claims for service connection for bilateral upper and lower peripheral neuropathy and depression are remanded. In addition, the Board notes the Veteran's most recent VA examination on the his claim for peripheral neuropathy is from March 2011, over two years ago, and the Veteran's most recent VA examination for his depression is from February 2008, over five years ago. As such, the Board finds these examinations are dated and no longer provide probative information of the Veteran's current condition. As such, new examinations are required. Finally, the Board notes review of the record reveals the Veteran has a pending appeal in his claim for benefits under 38 U.S.C. § 1151 for misdiagnosis and lack of treatment for neck and back condition which needs to be addressed upon remand. In order to appeal a RO rating decision to the Board, certain procedural steps must be followed to grant the Board jurisdiction to review the case. First, once a rating decision is issued, the Veteran or his or her representative must file a timely notice of disagreement (NOD); so long as the issues being appealed are clear, the AOJ by law must then issue a statement of the case (SOC); finally, to convey jurisdiction for the Board to hear the case, the Veteran must file a timely, substantive appeal. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). In a July 2010 rating decision the RO denied the Veteran's claim for benefits under 38 U.S.C. § 1151 for misdiagnosis and lack of treatment for neck and back condition. In August 2010 the Veteran filed a timely NOD indicating he disagreed with the referenced rating decision. The Veteran's statements voiced clear disagreement with the rating decision and a desire to contest the results. Because no special wording is required for a NOD, this written statement is considered to be a NOD, and in fact was even indicated as so by the RO's stamp. 38 C.F.R. §§ 20.201, 20.302(a). However, review of the record suggests the RO did not issue a SOC on this issue. As such, this NOD is still pending; and it is therefore proper to remand this claim because the Veteran has not yet been provided a SOC on this issue. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran was a VA examination to determine the nature and etiology of his bilateral upper and lower peripheral neuropathy (if any) to include as secondary to his diabetes mellitus, type II. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. Consistent with the factual history of the Veteran's diabetes mellitus, type II, and peripheral neuropathy, the examiner should provide an opinion as to the following questions: a) What is the nature and severity of the Veteran's current bilateral upper and lower extremities peripheral neuropathy, if any? b) Is it as likely as not (50 percent or greater) that the Veteran's current bilateral upper and lower extremities peripheral neuropathy is due to his service connection diabetes mellitus, type II, or was otherwise caused by his military service? 2. Provide the Veteran with a VA examination to determine the nature and etiology of an acquired psychiatric condition, to include depression. The claims folder must be made available to the examiner for review in conjunction with the examination. Any required tests and studies must be accomplished, and clinical findings must be reported in detail and correlate to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided. Consistent with the factual history of the Veteran's psychiatric condition, the examiner should provide an opinion as to the following questions: a) What is the nature and severity of the Veteran's current acquired psychiatric condition, to include depression, if any? b) Is it as likely as not (50 percent or greater) that the Veteran's current acquired psychiatric condition to include depression is due to his service connection diabetes mellitus, type II; hearing loss; tinnitus; or acne, or was otherwise caused by his military service? 3. The RO should issue a statement of the case (SOC) concerning claim of service connection for a back and neck disability under the provisions of 38 U.S.C. § 1151. The Veteran, and his representative, should be informed of the period of time within which a substantive appeal must be filed in order to perfect his appeal to the Board concerning these issues. With regards to the claim for benefits under 38 U.S.C.A. § 1151, if a timely substantive appeal is not filed, this claim should not be certified to the Board. If this claim is appealed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 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. 2012). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs