Citation Nr: 1324574 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 05-06 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to special monthly compensation for loss of use of the left foot. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 4. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability. 5. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee. 6. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella of the left knee. 7. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the left foot. 8. Entitlement an increased evaluation for coronary artery disease. ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1964 to July 1966. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. The issues of special monthly compensation for loss of use of the left foot; service connection for hypertension and a cervical spine disability; and increased evaluations for degenerative joint disease of the right knee, chondromalacia patella of the left knee, degenerative joint disease of the left foot, and coronary artery disease 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 probative evidence of record is at least in equipoise regarding whether the Veteran's erectile dysfunction is related to his service-connected type II diabetes mellitus. CONCLUSION OF LAW The Veteran's erectile dysfunction is proximately due to or the result of his service-connected type II diabetes mellitus. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in July 2008, prior to the November 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The July 2008 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available service and post-service treatment records have been secured. Also, the Veteran was provided multiple VA examinations addressing his diabetes mellitus and associated complications, including a July 2004 examination. Review of the reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. The Veteran has declined the opportunity to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Erectile Dysfunction The Veteran essentially contends that he has erectile dysfunction secondary to his service-connected type II diabetes mellitus. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). There is no doubt that the Veteran meets Wallin elements (1) and (2) as the record is clear that he has erectile dysfunction and he is service connected for type II diabetes mellitus. The remaining issue, therefore, is whether Wallin element (3), evidence of a nexus between the service-connected type II diabetes mellitus and erectile dysfunction, is met. The relevant evidence addressing the outstanding issue includes a July 2004 VA report noting an assessment of erectile dysfunction, which the clinician found was not secondary to the Veteran's diabetes mellitus. In support of her assertion, she indicated that the Veteran developed these symptoms about the same time as his diagnosis of diabetes mellitus and also noted that these were well-recognized complications of diabetes mellitus. On the other hand, a July 2008 report from the Ohio State University Medical Center noted an assessment of symptoms of erectile dysfunction. Citing diabetes as a known cause for neural/hormonal/vascular changes resulting in symptoms of erectile dysfunction, the clinician stated that the Veteran's erectile dysfunction was due to his diabetes mellitus. Based on the evidence of record cited herein, the Board concludes that evidence for and against the claim for service connection for erectile dysfunction is at least in approximate balance. In other words, the Board finds, based on this record that the Veteran's erectile dysfunction is as likely the result of his service-connected diabetes mellitus as it is the result of some other factor or factors. Although the VA clinician indicated that the concurrent onset of diabetes mellitus and erectile dysfunction showed that they were not related, she acknowledged the same medial principle (i.e., known complication) cited by the private clinician and did not address how this may come into play. The Board the will resolve the doubt presented in this case in favor of the Veteran. Therefore, giving the Veteran the benefit of the doubt, the Board finds that service connection for erectile dysfunction is warranted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.310 (2012). ORDER Service connection for erectile dysfunction, to include as secondary to service-connected type II diabetes mellitus, is granted. REMAND As to the claim for service connection for a cervical spine disability, the Veteran contends that the disability is due to service. In the alternative, he has also asserted that he has a disability secondary to a service-connected disability. At the outset, the Board also notes that while the Veteran was provided a notification letter in November 2007 for his claimed spine disability, the letter did not address his claim on a secondary basis. Therefore, he must be provided a notification letter detailing how he can substantiate his claim on a secondary basis. Additionally, although the Veteran was afforded an examination in July 2008, the examiner did not address the etiology of any current cervical spine disability, to include on a secondary basis. In this regard, the Board notes that a review of the claims folder reveals that the Veteran has been diagnosed with various spine disorders, including degenerative disc disease in the thoracic spine. On remand, the Veteran should be afforded another examination to determine the nature and etiology of any current cervical spine disability, to include on a secondary basis to a service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that "[o]nce VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the [veteran] why one will not or cannot be provided"); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). With regard to the claim for service connection for hypertension, the only relevant evidence addressing this issue is the July 2004 VA report noting an assessment of hypertension, which the clinician found was not secondary to the Veteran's diabetes mellitus. In support of her assertion, she indicated that the Veteran developed these symptoms about the same time as his diagnosis of diabetes and also noted that these were well-recognized complications of diabetes mellitus. The Board notes that there appears to be a discrepancy in the examiner's opinion. Although she indicated that hypertension was not secondary to diabetes mellitus, she noted that it was a known complication. In any case, she did not address whether hypertension was aggravated by diabetes mellitus. See supra Allen v. Brown, 7 Vet. App. 439, 448 (1995). Additionally, as to the onset of the claimed disability, the Board notes that a report from Adena Health Systems dated in January 2010 included a brief history of the Veteran's various disabilities, and showed onset of hypertension was four years before and onset of diabetes mellitus was seven years before. However, a detailed January 2007 VA diabetes mellitus examination report reflected that onset of diabetes mellitus was in 2003 and hypertension was in August 1999. The remaining evidence of record consistently showed that the hypertension predated diabetes mellitus. On remand, the Veteran should be afforded an examination to determine the nature and etiology of his current hypertension, to specifically include on a secondary basis to diabetes mellitus by way of causation and/or aggravation. As to the claims for special monthly compensation for loss of use of the left foot and degenerative joint disease of the left foot, the Veteran has asserted that he was not provided an adequate VA examination as it was not rendered by a podiatrist and the examiner, a physician's assistant, who evaluated him did not have the requisite expertise to provide such an evaluation. In this regard, the Board observes that there are two different opinions addressing whether the Veteran meets the criteria for loss of use of the left foot. The January 2012 VA examiner indicated that there was no functional impairment of the Veteran's foot such that no effective function remained other than which would be equally well-served by an amputation with prosthesis. In an April 2012 letter, in response to the Veteran's inquiry whether he would be better off with an amputation on the left extremity, E.L.D., D.P.M. indicated that such a procedure would likely relieve some of his significant pain but that there would be consequences of ambulation and disability. Therefore, due to the conflicting evidence of record, as well as the nature and severity of the Veteran's disability, he should be provided another examination by a podiatrist. See Barr, supra. As to the claims for increased evaluations for bilateral knee disability and coronary artery disease, the Board finds that updated examinations are necessary as the evidence reflects his disabilities may have increased in severity. As to the knee disorders, the Veteran was examined in January 2012 for his joints but he was not provided an examination for his knees. In his February 2013 statement, the Veteran specifically pointed out that his knees had not been examined in January 2012 and appeared to request an updated examination. With regard to coronary artery disease, the record shows that the Veteran has not had an examination since he was hospitalized in January 2011 and August 2011 for his heart. Accordingly, the Board finds that contemporaneous VA medical examinations are warranted for the Veteran's service-connected disorders. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran with an updated notification letter which includes the information and evidence necessary to substantiate a claim of service connection on a secondary basis regarding the claim of service connection for a cervical spine disability. 2. Schedule the Veteran for an examination to ascertain the nature and etiology of his current spine disability, to include as secondary to a service-connected disability. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should elicit a complete history of the cervical spine disability from the Veteran. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current cervical spine disability related to service. The examiner should also determine whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine was either (1) caused by or (2) is aggravated by a service-connected disorder. If the examiner determines that the Veteran's cervical spine disability is aggravated by a service-connected disability, the examiner should report the baseline level of severity of the cervical spine disability prior to the onset of aggravation. If some of the increase in severity of the cervical spine disability is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. In rendering the requested opinion, the examiner must specifically acknowledge and discuss any lay statement the Veteran may provide with regard to the onset of his disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (noting that an examination was found inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the lack of evidence in the service treatment records to provide a negative opinion). Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The report must be typed. 3. Schedule the Veteran for an examination to ascertain the nature and etiology of his current hypertension. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the examination. The examiner should determine whether there is a probability of 50 percent or greater that the Veteran's current hypertension was incurred or aggravated in service. The examiner should also determine whether there is a probability of 50 percent or greater that the Veteran's current hypertension was either (1) caused by or (2) is aggravated by the Veteran's service-connected diabetes mellitus. If the examiner determines that the Veteran's hypertension is aggravated by the service-connected diabetes mellitus, the examiner should report the baseline level of severity of the nonservice-connected hypertension prior to the onset of aggravation. If some of the increase in severity of the nonservice-connected hypertension is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. The examiner should also indicate the date of onset of hypertension. The examiner should reconcile any opinion with the evidence of record and cite to the record as appropriate. Any opinion provided must include an explanation of the basis for the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The report must be typed 4. Schedule the Veteran for an examination with a podiatrist to evaluate his left foot. The claims folder must be made available to the examiner in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all appropriate protocols for rating foot disabilities. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. a) The examiner must specifically state range of motion findings, to include where pain begins. b) The examiner must comment on whether this disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms). c) The examiner must discuss whether pain significantly limits functional ability during flare-ups or following repeated use (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups). e) The examiner must also provide an opinion concerning the impact of the Veteran's left foot disorder on the Veteran's ability to work to include whether the Veteran is unemployable because of his service-connected disability. f) The examiner should also provide an opinion as to whether the Veteran retains effective function in his left foot or whether he would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination must be made on the basis of the actual remaining function of the foot, that is, whether the acts such as balance and propulsion can be accomplished equally well by an amputation stump with prosthesis. The examiner should reconcile any conflicting evidence of record. The supporting rationale for all opinions expressed must be provided. 5. Schedule the Veteran for an orthopedic examination in order to determine the current level of severity of his bilateral knee disabilities. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. Any tests and studies deemed necessary by the examiner must be conducted. All findings must be reported in detail. The examiner must describe all pertinent symptomatology associated with the Veteran's knee disabilities and should provide the following information: a) The examiner must specifically state range of motion findings, to include where pain begins. b) The examiner must comment on whether these disabilities exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected disability (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms). c) The examiner must discuss whether pain significantly limits functional ability during flare-ups or following repeated use (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups). d) The examiner must opine as to whether the Veteran has subluxation or lateral instability of either or both knees and if he does, should describe its severity. e) The examiner must also provide an opinion concerning the impact of the Veteran's knee disorders on the Veteran's ability to work to include whether the Veteran is unemployable because of either or both of his service-connected disabilities. The supporting rationale for all opinions expressed must be provided. 6. Schedule the Veteran for a cardiovascular examination to determine the severity of his service-connected coronary artery disease. The claims folder must be made available to the examiner. All necessary tests and studies should be performed, to include the appropriate exercise test(s) needed to properly calculate the Veteran's heart workload measured in METs. If a laboratory determination of METs by exercise testing cannot be done for medical reasons, the examiner should estimate the level of activity. This should be expressed in METs, and supported by specific examples, such as slow stair climbing that results in dyspnea, fatigue, angina, dizziness, or syncope. All findings should be reported in detail and a complete rationale provided for each opinion. 7. Thereafter, readjudicate the Veteran's claims. If any of benefits sought on appeal remains denied, provide the Veteran with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs