Citation Nr: 1321470 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 06-34 110A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for claimed erectile dysfunction, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for claimed right lower extremity sciatica, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from February 1967 to July 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the RO that, in pertinent part, denied service connection for diabetes mellitus, right lower extremity sciatica and erectile dysfunction. In June 2007, the Veteran and his wife testified at a hearing held at the RO before a Veterans Law Judge (VLJ). A transcript of the hearing proceedings is of record and has been reviewed. The VLJ who conducted the hearing is no longer employed by the Board. The Veteran was sent a communication in August 2012 advising him that a Judge who conducts the hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). The Veteran was offered an opportunity to testify at another hearing, but did not respond within 30 days from the date of the letter. He was informed that should he not respond, the Board would assume he did not want another hearing and would proceed accordingly. In an October 2009 decision, the Board denied the claims of service connection for diabetes mellitus, right lower extremity sciatica, and erectile dysfunction. The Veteran appealed the determination to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in August 2010, the Court granted a Joint Motion to Remand. Subsequently, in February 2011, the Board remanded the case to the RO for additional development of the record. After accomplishing development, a VA medical opinion was obtained reflecting that the Veteran's diabetes mellitus was the result of an event that was not reasonably foreseeable in connection with VA treatment. Subsequently, in June 2012 rating decision, the RO granted the Veteran's claim for compensation pursuant to 38 U.S.C.A. § 1151 and assigned a 20 percent rating for diabetes mellitus, effective on December 20, 2004. To the extent that compensation benefits were granted for the diabetes mellitus under the provisions of 38 U.S.C.A. § 1151, the issue of service connection for diabetes mellitus as secondary to herbicide exposure is rendered moot. FINDINGS OF FACT 1. The competent and probative evidence of record preponderates against a finding that the Veteran currently has erectile dysfunction that is due to any incident or event in military service; nor is it caused or aggravated by the Veteran's diabetes mellitus. 2. The competent and probative evidence of record preponderates against a finding that the Veteran currently has right lower extremity sciatica that is due to any incident or event in military service; nor is it caused or aggravated by the Veteran's diabetes mellitus. CONCLUSIONS OF LAW 1. The Veteran's disability manifested by erectile dysfunction is not due to disease or injury that was incurred in or aggravated by active service; nor is it proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. The Veteran's disability manifested by right lower extremity sciatica is not due to disease or injury that was incurred in or aggravated by active service; nor is it proximately aggravated by, proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in February 2005, January 2008, April 2009, February 2011, and January 2012 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded VA examinations in March 2005 and January 2013 that are determined to adequate for adjudication purposes. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the Veterans Law Judge (VLJ) clarified the issues on appeal and suggested the submission of additional evidence to support the Veteran's claim. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103 (2012). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection claims Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Several statutory presumptions operate in connection with sections 1110 and 1131, and the appellants invoke two such provisions in these appeals, 38 U.S.C.A. § 105(a) and 38 U.S.C.A. § 1111. To be eligible for disability compensation, however, it is not enough for a Veteran to show that he incurred a disease or injury while in service; he must also show that he has a present disability and that there is a nexus between that disability and his in-service injury or disease. Shedden, 381 F.3d at 1167. While the section 105(a) presumption establishes that an injury or disease that was incurred during service was incurred in the line of duty, it is irrelevant to the question whether that in-service injury or disease is causally related to the Veteran's current disability. See Dye v. Mansfield, 504 F.3d at 1292. When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). In addition, a disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a). Specifically, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 71 Fed. Reg. 52744-52747 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). Erectile dysfunction, secondary to diabetes mellitus, Type II The service treatment records are negative for complaints or findings referable to erectile dysfunction. The post-service treatment records show that the Veteran complained of erectile dysfunction, for which he was prescribed Viagra in December 2002. The Veteran was first diagnosed with diabetes mellitus, Type II in December 2004, when a treatment record showed the Veteran presented to the emergency room with complaints of polydipsia, polyuria, blurred vision, headache and thirst. Laboratory testing showed he had a blood sugar of 732. A VA examination was conducted in March 2005. The report noted that the Veteran had been prescribed medication for his ED in December 2002. The examiner opined that the Veteran's history of ED predated the diagnosis of diabetes mellitus, Type II. The VA outpatient treatment records dated in May 2005 showed that the Veteran had been treated for sarcoidosis since 1993. He is shown to have placed on Prednisone, which helped his breathing. The Veteran testified at the hearing in June 2007 that, while he was being treated for ED before he was diagnosed with diabetes mellitus, his ED had worsened since his diabetes diagnosis. The Veteran underwent a VA examination in April 2009. The examiner opined that the diabetes mellitus was caused by his use of steroids, which were prescribed by VA as treatment for his sarcoidosis. In a June 2012 rating decision, the RO granted the Veteran's claim for compensation under 38 U.S.C.A. § 1151 for diabetes mellitus, Type II. The Veteran underwent a VA examination in January 2013. The examiner diagnosed ED. The examination report noted that the Veteran had been prescribed prednisone for his sarcoidosis. This has worsened his ED. His symptoms had improved over the previous three to four months since the prednisone had been discontinued. He was noted to use Viagra that helped and a vacuum pump. The examiner opined that the Veteran's history of ED predated his diagnosis of diabetes mellitus, Type II. Specifically, he was diagnosed with ED in December 2002. The examiner found no objective evidence of the ED is aggravated by the diabetes mellitus. To the extent that the Veteran asserts that his ED is related to his diabetes mellitus, the Board notes that he is competent to provide testimony concerning factual matters of which he has first-hand knowledge (that is, experiencing physical symptoms associated with ED). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim of service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with examinations based on the competency of these observations. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issue of causation or aggravation of the claimed ED is a medical determination outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Significantly, to the extent that the recent VA examiner found that the ED was not caused or aggravated by the Veteran's diabetes mellitus, his opinion was based on history provided by the Veteran that he had experience some improved following the cessation of treatment with steroids for the sarcoidosis and by using prescribed Viagra and vacuum pump. Although the Board has carefully considered the lay assertions of the Veteran suggesting that the his ED is related to his service-connected diabetes mellitus, Type II, the medical opinions of the VA examiners are of greater probative weight than the Veteran's lay statements. The preponderance of the competent and probative evidence of record shows that the Veteran's ED is not caused or aggravated by his diabetes mellitus. The benefit sought on appeal is accordingly denied. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right lower extremity sciatica, as secondary to service-connected diabetes mellitus The Veteran's service treatment records are negative for complaints or findings referable to right lower extremity sciatica. The post-service treatment records from 2002 showed that the Veteran complained of low back pain and right lower extremity pain going down his leg into the foot. As stated, the Veteran was diagnosed with diabetes mellitus in December 2004. The treatment records dated since 2004 show complaints and findings of low back pain. No additional notations of sciatica or radiating right lower extremity pain were noted. The Veteran underwent a VA examination in March 2005. He reported having numbness in his lower right extremity. The examiner noted that the treatment records showed a history of chronic back pain since December 2002. The examiner also noted a February 2003 neurosurgical evaluation where the Veteran was noted to have foraminal stenosis and sciatica with foot weakness on the right, secondary to foraminal stenosis. Upon examination, the examiner found normal strength and peripheral pulses with no clubbing, cyanosis or edema in the lower extremities. The Veteran had complaints of right foot numbness with intact sensation to light touch and to monofilament testing at both feet. The examiner stated that the Veteran had had chronic low back pain with an abnormal MRI and symptoms of right lower extremity sciatica since February 2003. The examiner opined that the Veteran's complaints of numbness of the right extremity were not due to diabetes mellitus. The Veteran testified at the hearing in June 2007 that his physician told him that the numbness in his foot was due to the diabetes mellitus. The Veteran underwent a VA examination in January 2013. The examiner found that the Veteran had a diagnosis of degenerative disc disease of the lumbar spine, but found no objective evidence of lumbar radiculopathy. Upon review of the evidence of record, the Board finds that service connection is not warranted for sciatica of the lower right extremity. Although the Veteran has complained of subjective numbness in his right leg and foot, a diagnosis of a chronic sciatica has noted been made during the period of the appeal. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). However, to the extent that the Veteran has been found to have complaints of numbness amount to a disability, the probative evidence does not show that the sciatica was incurred during his active service or caused or aggravated by the Veteran's diabetes mellitus, Type II. Specifically, the sciatica symptoms were first noted in 2002, two years prior to the diagnosis of diabetes mellitus and were noted to be secondary to the degenerative disc disease of the lumbar spine. While the Veteran testified that his physician told him that his foot numbness was related to his diabetes, the record does not support this assertion. In certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. In Jandreau, the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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, 492 F.3d 1372. The Veteran is competent to report that he experienced numbness in his leg and foot; however, his assertions alone are not sufficient and competent to establish a that the numbness is due to diabetes mellitus, particularly in light of the more probative evidence showing sciatica as a result of chronic back pain. To the extent that he is competent, his contentions are outweighed by the VA examination evidence noted above. See Jandreau, supra. Therefore, the preponderance of the evidence of record indicates that the Veteran's symptoms of numbness in his right leg and foot are not related to his service-connected diabetes. The benefit sought on appeal is accordingly denied. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claims. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for erectile dysfunction, including as secondary to service-connected diabetes mellitus, Type II is denied. Service connection for right left sciatica, including as secondary to service-connected diabetes mellitus, Type II is denied. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs