Citation Nr: 1318869 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 04-33 713 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for claimed tinea pedis, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for claimed impotence, to include as secondary to service-connected diabetes mellitus type II. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran had active duty service from August 1969 to July 1971. This case initially comes to the Board of Veterans' Appeals (Board) on appeal of a May 2003 rating decision by the RO. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in September 2007, and a copy of the transcript is of record. In a decision dated in November 2007, the Board denied the claims of service connection for tinea pedis and impotence. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order in February 2009, the Court granted a Joint Motion For Remand (Joint Motion), vacating the November 2007 Board decision. In the Joint Motion the parties agreed that the Board in its previous decision did not discuss whether the Veteran's erectile dysfunction and impotence was aggravated by his service-connected diabetes mellitus. The Board notes that there has been a change in representation and the Veteran currently is being represented by the Military Order of the Purple Heart. In May 2013, the Veteran's representative waived initial RO review of newly submitted evidence. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. In July 2009, the Board remanded the issues to comply with the Court's Order. The issue of service connection for claimed impotence, to include as secondary to the service-connected diabetes mellitus, is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT. The currently demonstrated impotence is shown as likely as not to have been aggravated by the service-connected diabetes mellitus. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by impotence is proximately due to or the result of the service-connected diabetes mellitus. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012); 3.310 (prior to October 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSTION The Veterans Claims Assistance Act of 2000 (VCAA) VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the claim of secondary service connection for impotence is granted, further discussion here of compliance with the VCAA with regard to this claim is not necessary. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2006, VA amended 38 C.F.R. § 3.310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service-connected disability. 38 C.F.R. § 3.310(b). In this case, the Veteran applied for service connection prior to the effective date of the amendment. As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Analysis The Veteran contended that his impotence is either caused or aggravated by his service-connected diabetes mellitus. The evidence in favor of the claim consists of a July 2003 VA doctor's opinion, an August 2003 VA examination report, and an opinion from a private doctor in January 2007. In July 2003, a VA doctor opined that the Veteran's erectile dysfunction was a complication of his diabetes mellitus. On VA examination for diabetes in August 2003, the examiner, a medical doctor, noted that the Veteran was diagnosed with diabetes mellitus approximately between 2000 and 2001 and had complained of impotence. The Veteran reported having difficulty sustaining an erection, used to have sexual intercourse 10 times per month and at the time of the examination was down to 3 times per month. The examiner concluded that sexual dysfunction was as likely as not related to diabetes mellitus. In January 2007, the private doctor opined that the Veteran's erectile dysfunction was secondary to his service-connected diabetes mellitus. The evidence against the claim consists of a VA examination in February 2003, and VA opinions in December 2010 and in October 2012. On VA examination in February 2003, the examiner after reviewing the claims file and examining the Veteran concluded that the erectile dysfunction was less likely than not secondary to diabetes mellitus because the erectile dysfunction predated diabetes mellitus by 3 years and because the Veteran had an 18 year history of smoking and was over 40, both of which were known etiologies of erectile dysfunction. A VA opinion was recently obtained in December 2010 from a VA physician. After reviewing the Veteran's records, the physician noted that it appeared that the Veteran was diagnosed with diabetes mellitus in June 2002 and had erectile difficulty in May 1997 and was evaluated for erectile dysfunction in July 1999. The examiner found that the Veteran had significant erectile dysfunction that predated the onset of his diabetes mellitus. He also noted that the Veteran had other risk factors for erectile dysfunction, to include smoking and hyperlipidemia. The examiner concluded that it was more likely than not that the erectile dysfunction was due to that and less likely than not due to diabetes mellitus, which did not exist at the time of onset of erectile dysfunction. In another opinion in October 2012, the same VA physician reiterated that diabetes mellitus did not cause erectile dysfunction. He opined that it was less likely than not that diabetes mellitus aggravated the erectile dysfunction as it was quite severe when the Veteran was treated in July 1999 and the diabetes mellitus had been fairly well controlled. The Board finds based on a careful review of the entire record that the evidence is in relative equipoise as to whether the Veteran's impotence or erectile dysfunction was aggravated by the service-connected diabetes mellitus. In September 2007, the Veteran testified that, after he was diagnosed with diabetes mellitus, his erectile dysfunction became more serious. His statements in this regard are competent and credible. Under certain circumstances, a lay person is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a general matter, lay witnesses are competent to testify as to their observations as well as opine on questions of diagnosis and etiology in some circumstances. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Furthermore, on close review of the record, the Board finds that the examiner in August 2003 in rendering the favorable opinion basically had concluded that the service-connected diabetes mellitus had aggravated the Veteran's impotence due to the fact that the Veteran's history of having decreased sexual activity after he was diagnosed with diabetes mellitus. To the extent the October 2012 VA opinion is the only one of record whereby the examiner concluded that erectile dysfunction was not aggravated by diabetes mellitus, the VA medical reviewer did not address the Veteran's lay assertions of having decreased sexual intercourse. What is not entirely clear from the record in this case is the degree of chronic worsening of the Veteran's erectile dysfunction due to service-connected diabetes mellitus. As it is not possible to differentiate aggravation caused by the service-connected diabetes mellitus, any doubt should be resolved in the Veteran's favor. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected condition, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected condition). Service connection is warranted when the aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Therefore, in resolving all doubt in the Veteran's favor, service connection for impotence as secondary to the service-connected diabetes mellitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for impotence as secondary to the service-connected diabetes mellitus is granted. REMAND Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). Stefl, 21 Vet. App. at 123-24. In addition, a medical opinion's probative value is based in the rationale provided. Nieves Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). In July 2009, the Board remanded the issue of service connection for tinea pedis for a VA opinion as to whether the service-connected diabetes mellitus caused or aggravated the claimed tinea pedis. An opinion was obtained in December 2010; however, the examiner did not provide an adequate rationale as to aggravation. In opining that it was less likely than not that there was aggravation, the examiner merely stated that there is no causative etiology between the two disorders and that the tinea pedis predated the diabetes. In October 2012, the same examiner reiterated his opinion that the service-connected diabetes mellitus did not cause or aggravate tinea pedis as there was no clear causative etiology between the two conditions. Thus the examiner's opinion was inadequate as it relied on a lack of causation to conclude that there was no aggravation. Significantly, the VA examiner also noted that tinea pedis might be more frequent in diabetics. In April 2013, the Veteran's submitted articles from the Internet that reported that athlete's foot also was referred to as tinea pedis and diabetics were at a higher risk for developing athlete's foot because elevated sugar in the body provides food for fungus encouraging overgrowth. Under these circumstances an addendum opinion should be obtained that clearly addresses whether the service-connected diabetes mellitus aggravated the tinea pedis. Accordingly, this remaining matter is REMANDED for the following action: 1. The RO should take all indicated action in order to return the claims file to the VA examiner who rendered the opinions in December 2010 and in October 2012 in order to ascertain the nature and likely etiology of the claimed foot disease. If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner. The examiner is asked to provide a rationale for any opinion rendered. If the examiner is not able to provide an opinion, he or she should explain why. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's tinea pedis was aggravated by his service-connected diabetes mellitus? The examiner is asked to comment on whether some of the increase in severity is due to natural progress of the disease, and if so the examiner should identify the degree of increase in severity due to natural progression. The examiner should elaborate on the opinion in December 2010 that tinea pedis might be more frequent in diabetics and the articles in the Internet claims folder stating that diabetics were at a higher risk for tinea pedis because elevated sugar in the body encourages the overgrowth of fungus. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs