Citation Nr: 1329661 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-22 468A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to diabetes mellitus. 2. Entitlement to special monthly compensation due to loss of use of a creative organ. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1970 to December 1972. This matter came before the Board of Veterans' Appeals (Board) from September 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in March 2013. A transcript of the hearing has been associated with the Veteran's Virtual VA (VVA) e-file. When the Veteran's appeal was before the Board in May 2013, higher initial evaluations for diabetes mellitus and peripheral neuropathy of the bilateral lower extremities were denied. The Board remanded the instant issues for further development. As of August 2013, additional evidence has been added to the record; however, this evidence relates to a disability that is not on appeal (i.e., a heart disability), and therefore the Board concludes that it is irrelevant to the instant appeal. FINDINGS OF FACT 1. The veteran failed to report for a scheduled VA examination, and good cause for his failure to report is not shown. 2. Erectile dysfunction is unrelated to service or a service-connected disability. CONCLUSIONS OF LAW 1. Entitlement to service connection for erectile dysfunction is not warranted. 38 C.F.R. §§ 3.303, 3.310, 3.655 (2012). 2. The criteria for SMC based on loss of use of a creative organ have not been met. 38 U.S.C.A. §§ 1114(k), 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.350(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 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 of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. A letter dated in January 2009, prior to the adjudication of the Veteran's erectile dysfunction claim, discussed the evidence necessary to establish service connection. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. A letter dated in March 2010, prior to the adjudication of the Veteran's SMC claim, discussed the evidence necessary to establish SMC. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. The Board finds that the content of the notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, VA treatment records and private treatment records have been obtained and associated with the record. A VA examination was conducted in July 2012, but the Board found that this examination was inadequate for the purpose of deciding the Veteran's claim. An additional examination was scheduled subsequent to the Board's May 2013 remand; the Veteran canceled this examination and did not request to be rescheduled. As such the Board is compelled to evaluate the claim on the existing record. See 38 C.F.R. § 3.655(b) . The Veteran also was afforded a hearing before the undersigned during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Erectile Dysfunction The Veteran seeks service connection for erectile dysfunction on the basis that it was caused or aggravated by his service-connected diabetes mellitus. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). This includes any increase in disability (aggravation) that is proximately due to or the result of a 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 caused or aggravated by a service- connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Private treatment records reflect that at the time new onset diabetes mellitus was identified in May 2008, the Veteran was already in receipt of medication for the treatment of erectile dysfunction. In that regard, the Board observes that Viagra is listed as a current medication as early as July 2007. On VA examination in July 2012, the examiner indicated that the etiology of the Veteran's erectile dysfunction was diabetes mellitus. He did not provide any rationale for this conclusion. Specifically, he did not provide a discussion of the Veteran's history, which shows that erectile dysfunction was noted prior to the diagnosis of diabetes mellitus. At his March 2013 hearing, the Veteran testified that he discovered that he had high blood sugar one day at work when he described feeling "fuzzy-headed" to a colleague who was diabetic, and they tested his blood sugar. He stated his belief that he had actually had "full blown" diabetes long before it was diagnosed. He noted that he had trouble with erectile dysfunction prior to being diagnosed with diabetes, but stated that he believed that he did have diabetes at that time, or many years prior to his diagnosis. In May 2013, the Board determined that the July 2012 examination report was not adequate for the purpose of deciding the Veteran's claim and found that clarification should be sought. The appeal was remanded for an additional examination to determine the etiology of the Veteran's erectile dysfunction. While the appeal was in remand status, the Veteran was scheduled for a VA examination in May 2013. A hand-written note on the examination inquiry indicates that the Veteran canceled his appointment. No further explanation is indicated, and the record does not otherwise contain any correspondence from the Veteran explaining why he canceled his appointment or requesting to be rescheduled. According to 38 C.F.R. § 3.655(a), (b) (2012), when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination; and the examination was scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. As such, the Board is compelled to decide this claim based on the current record. Having reviewed the evidence of record, the Board concludes that service connection is not warranted for erectile dysfunction. In this regard, the Board notes that it determined in May 2013 that the evidence was not sufficient to decide the claim, and remanded to obtain a more comprehensive examination explaining the etiology of the Veteran's erectile dysfunction. The Veteran canceled this examination. The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service or to service-connected disability. While the record reflects that the Veteran has both erectile dysfunction and diabetes mellitus, it does not show that the Veteran's erectile dysfunction, which appears to have preexisted his diabetes diagnosis, was either caused or aggravated by the service-connected diabetes mellitus. The evidence of record is in conflict with regard to the etiology of the Veteran's erectile dysfunction to the extent that the July 2012 VA examiner did not provide any rationale for his conclusion that the etiology of the claimed disability was the Veteran's diabetes mellitus. In light of evidence showing that erectile dysfunction preexisted the diabetes diagnosis, the 2012 examiner's failure to acknowledge and discuss these pertinent facts rendered his conclusion regarding etiology inadequate. In reaching its conclusion, the Board has considered the Veteran's statements and testimony in regard to the onset of his diabetes in relation to his erectile dysfunction. Specifically, the Veteran has testified that in his opinion, he had "full blown" diabetes prior to his erectile dysfunction, even though it had not yet been diagnosed. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, the Board finds that he is not competent to offer an opinion on a complex medical matter, to include opining as to the clinical onset and diagnosis of diabetes mellitus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the questions of onset of diabetes and of whether the Veteran's erectile dysfunction is related to the service-connected diabetes mellitus are ultimately medical questions that are too complex to lend themselves to the opinion of a layperson. The Board observes that although the Veteran has been advised of the evidence necessary to support a claim of entitlement to service connection for this disability and has also been notified that an adequate examination is required, he has neither identified nor submitted further evidence supportive of this claim. As noted, he has also canceled an additional VA examination, without explanation or request to be rescheduled. The evidence preponderates against the Veteran's claim. Consequently, the doctrine of reasonable doubt is not applicable to the instant appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Special Monthly Compensation (SMC) SMC is a statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114(k)-(s), and 38 C.F.R. §§ 3.350, 3.352. Under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a)(1), SMC is payable at a specified rate if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. Here, the Veteran seeks SMC based on erectile dysfunction. However, as determined above, service connection for erectile dysfunction is not warranted. As such, there is no legal basis for the grant of SMC as it relates to erectile dysfunction. As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER Entitlement to service connection for erectile dysfunction is denied. Entitlement to SMC is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs