Citation Nr: 1330443 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 13-07 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for erectile dysfunction (ED). 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served during peacetime and the Vietnam era from February 1964 to June 1968. He served in combat in Vietnam and is presumed to have exposure to herbicides. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for ED and continued a 10 percent evaluation for PTSD. The Board notes that although a February 2013 rating decision increased the Veteran's PTSD evaluation to 30 percent, because the Veteran has not received the maximum evaluation, his claim remains on appeal. The Board further notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals documents that are either duplicative of the evidence or irrelevant to the issue on appeal. Entitlement to service connection for a gastrointestinal disorder, to include on a secondary basis due to PTSD, has been raised by the record in an attachment to the March 2013 VA Form 9, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The issues of entitlement to an evaluation in excess of 30 percent for PTSD and entitlement to TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's ED was not incurred in service, is not related to active duty, and is not caused or aggravated by his service-connected type II diabetes mellitus. CONCLUSION OF LAW The Veteran's ED is not related to or caused by active military service; nor is it caused or aggravated by his service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in a January 2011 letter prior to the initial adjudication of the claim. The VCAA also requires VA to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all other available post-service evidence identified by the Veteran have been obtained. The Veteran's written statements are also of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. VA also satisfied its duty to obtain a medical opinion when required. The Veteran was provided with an examination for ED in February 2011 which the Board finds to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311. The examiner reviewed the claims file and medical records and noted the Veteran's medical history, symptoms, and occupational effects. He also provided an opinion with a rationale that is consistent with the evidence of record. Although the rationale rests on few facts, that by itself does not render the opinion inadequate. "Most of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, there are very few "significant facts" for the examiner to consider-only a recent diagnosis of diabetes and some earlier medical evidence of ED-and the examiner's opinion reflects that. Moreover, the Veteran made few lay statements relating to his ED. Because the examiner reviewed the relevant evidence, considered the material facts and provided a reasoned opinion, the Board finds the examination to be adequate. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 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). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection if such evidence is consistent with the circumstances, conditions, or hardships of service. 38 U.S.C.A. § 1154(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that his ED is caused by his service-connected diabetes. There is no evidence of ED until over 30 years after service. STRs from January 1964 to June 1968 are negative for any symptoms related to ED. VA medical records dated October 2001 noted that the Veteran had a prescription for Viagra to treat impotence and in a June 2002 VA examination, the Veteran noted that he had had ED for "several years." January 2009 VA medical records noted a diagnosis of diabetes mellitus type II. In a February 2011 VA examination, the Veteran claimed that his ED onset about 15 years prior. The examiner diagnosed the Veteran with ED but opined that "[ED] is not caused by or a result of diabetes mellitus type II" because ED onset many years prior to diabetes. Additionally, he noted that there was no objective evidence to show that diabetes had aggravated ED. In a June 2011 notice of disagreement, the Veteran stated that he has had ED since his early 30s but did not know that it could be related to diabetes until recently. He also noted that his ED medication was becoming less and less effective. In a July 2013 informal hearing presentation, the Veteran's representative argued that the Veteran should be entitled to service connection because his diabetes existed "long before" it was diagnosed. The Board finds that the Veteran is not entitled to service connection on either a direct or a secondary basis. The Board will address the elements of each theory of service connection in turn. 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. Shedden, 381 F.3d at 1167. First, the Board finds that there is a current diagnosis. In the February 2011 VA examination, the examiner diagnosed the Veteran with ED. Second, the Board finds that the Veteran's ED did not begin in service. The Veteran is competent to provide testimony regarding the onset of symptoms related to ED, particularly since they were later confirmed by a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Although the Veteran is competent to report on his observable symptoms, the Board may discount the probative value of lay statements that are inconsistent with other statements and evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). In a February 2011 VA examination, the Veteran claimed that his ED onset about 15 years ago (i.e. around 1996). This statement is consistent with a June 2002 VA examination for PTSD, where the Veteran noted that he had had ED for "several years." However, in the June 2011 notice of disagreement, the Veteran stated that he has had ED since his "early 30s" (i.e. around 1975 at the earliest). STRs are negative for symptoms of ED and the first document noting ED appears in an October 2001 VA medical record. The Veteran's statements are consistent with this evidence. However, the Veteran's statements are inconsistent with each other-the claimed onset of ED ranges from 1975 to 1996. The Board discounts the probative value of these statements; even so, all the Veteran's statements point to an onset that occurs post-service. Thus, the Board finds that the evidence weighs against a finding that the Veteran's ED began in service. The combat presumption is not applicable because the Veteran has not claimed that his ED began in service. 38 U.S.C.A. § 1154(b). Finally, the Board finds that there is no nexus between the Veteran's ED and his military service. There is no etiological opinion regarding a nexus between the Veteran's ED and military service. In addition, the Veteran's STRs are negative for ED or ED symptoms and the Veteran does not allege that his ED was directly caused by his military service. Given the lack of evidence supporting a link between the Veteran's ED and his service, the Board therefore finds that the Veteran is not entitled to service connection on a direct basis. In order to establish service connection on a secondary basis, there must be (1) competent evidence of a current disability; (2) a service-connected disability; and (3) competent 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). First, there is a current diagnosis because, as stated above, the examiner noted a diagnosis in the February 2011 VA examination. Second, the Veteran is service-connected for diabetes via a March 2009 rating decision granting service connection based on a January 2009 diagnosis and the Veteran's exposure to herbicides in Vietnam. Finally, however, the Board finds that the Veteran's ED was not caused or aggravated by his service-connected diabetes. In the February 2011 VA examination, the examiner opined that "[ED] is not caused by or a result of diabetes mellitus type II" because the Veteran's ED onset many years prior to his diabetes. Although the Veteran disagrees with the examiner's opinion, the record supports it. The first diagnosis of diabetes appears in a January 2009 VA medical record, which also noted that the Veteran had been counseled on diet by his primary care provider. Another January 2009 VA record reported that in November 2008, the primary care provider noted hyperglycemia and fasting glucose of 128. The primary care provider also reported that the Veteran's glucose was "up a little" on an August 2006 local lab and noted impaired fasting glucose. These records suggest onset somewhere in this time period. In the June 2011 notice of disagreement, the Veteran stated that he did not know that ED could be related to diabetes until recently, suggesting that his diabetes would have been diagnosed earlier if only he had been tested; and in the July 2013 informal hearing presentation, the Veteran's representative argued that the Veteran's diabetes existed "long before" it was diagnosed. Although the Veteran indicated in his initial claim for service connection that his diabetes began in January 2009, since he has subsequently made specific assertions that it began prior to his diagnosis, the Board will presume those reflect his current contention. Again, the Veteran is competent to report on the onset of his observable symptoms, particularly since they were later confirmed by a diagnosis by a medical professional. Jandreau, 492 F.3d at 1376-77. The Veteran is not, however, competent to make a medical diagnosis in this particular circumstance because a diagnosis of diabetes is not capable of lay observation. Layno, 6 Vet. App. at 469. Here, the Veteran is not alleging that he experienced symptoms associated with diabetes prior to his diagnosis. Rather, he is providing a medical conclusion that he had diabetes prior to the diagnosis. The Veteran has not established that he is a medical professional and therefore he is not competent to make such an assertion. Thus, the Board attributes more probative value to the 2009 diabetes diagnosis and medical records reporting the Veteran's increased glucose in 2006 and 2008. As analyzed above, the onset of the Veteran's ED is unclear. There is evidence of a diagnosis of ED as early as October 2001. The Veteran has at times claimed that ED symptoms began as early as 1975 or as late as 1996. He is competent to report on such symptoms. But because the onset of diabetes appears to be somewhere around 2006 to 2009, and the latest reported onset of ED is 1996, and the earliest diagnosis of ED is 2001, the Board finds that the Veteran's ED onset before his diabetes. Therefore, as the evidence of record supports the examiner's determination that ED preceded the onset of diabetes, the Board affords the opinion substantial probative value and finds that the Veteran's ED was not caused by his diabetes. When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448; see also 38 C.F.R. § 3.310(b). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310(b), instituting additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. It is the Veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity. See 71 Fed. Reg. 52,745 (Sept. 7, 2006). Regarding aggravation, the February 2011 VA examiner opined that there was "no objective evidence" showing that diabetes had aggravated ED. Although objective evidence is not necessarily required to support aggravation, here the lay evidence also does not support such a finding as it does not allege increased ED after the onset of diabetes. The only lay evidence that could be construed as alleging aggravation appears in the June 2011 notice of disagreement, in which the Veteran claimed that his ED medication was becoming less and less effective. The Veteran is competent to report that his medication is not as effective; there is no contrary evidence diminishing the statement's credibility. Layno, 6 Vet. App. at 469. However, that fact alone does not establish that diabetes is aggravating ED-there could be a number of explanations why his medication is less effective but the Veteran is not competent to determine the reason because he has not shown any specialized medical training and that determination is a highly complex medical issue. Id. Thus, when the Veteran's statement is weighed against the examiner's opinion, the Board finds the opinion to be substantially more probative. Therefore, the Board finds that the Veteran is not entitled to secondary service connection based on aggravation. Considering the record in sum, the Board finds that evidence in this case weighs against the Veteran's claim based on both direct and secondary theories of service connection. As such, the benefit of the doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. at 53. ORDER Service connection for ED is denied. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. Here, a remand is required to obtain another VA examination and an opinion on whether his disabilities preclude him from obtaining gainful employment. First, the Veteran must be afforded a new VA examination. The Veteran was provided with VA examinations for PTSD in November 2009 and April 2011. However, in June 2011-two months after his most recent examination-he stated that his symptoms had worsened since the initial 10 percent disability rating in December 2009. In February 2013, the Veteran's disability rating was increased to 30 percent. Again, however, in the March 2013 informal hearing presentation, the Veteran's representative claimed that the Veteran's PTSD appeared to be worsening. Thus, because the Veteran alleges his symptoms have worsened since his last examination, he should be provided a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Second, the Veteran requires an opinion as to whether his service-connected disabilities preclude him from gainful employment. In an attachment to the March 2013 VA Form 9, the Veteran stated "I have tried to supplement my income with part-time employment, but could not get out of the house. I attempt [sic] to work in Wal-Mart but could not be given a non-public-connected job. I have worked part-time at different storage lockers (renting, cleaning, etc.) but was let go several times from different places because of my dealings with the customers. Basically, I cannot be in a crowd or depend on others while working." Given the evidence of a current disability, the Veteran's claim for the highest rating possible, and the evidence of unemployability, the record raises a claim for TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). Because there is no recent opinion as to whether the Veteran's current service-connected disabilities, in combination, would be sufficient to preclude gainful employment, VA must provide him with one. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his PTSD. After securing any necessary authorization from him, obtain all identified records not already contained in the claims file. All reasonable attempts should be made to obtain any identified records and to obtain any outstanding VA treatment. If any records cannot be obtained after reasonable efforts have been made, a formal determination that such records do not exist or that further efforts to obtain such records would be futile should be issued and documented in the claims file. The Veteran should be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing #1 above, schedule the Veteran for a VA examination to determine the severity of his PTSD and an opinion on the effect of his service-connected disabilities on his ability to obtain gainful employment. The claims file and Virtual VA file should be made available to the examiner for review and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed should be provided. If an opinion cannot be provided without resort to speculation, it should be noted in the examination report, and an explanation provided for that conclusion. After a review of the evidence of record, the examiner should report the severity of all signs and symptoms of the service-connected PTSD, describe the impact of the disability on occupational and social functioning, and provide a GAF score. Thereafter, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (PTSD and type II diabetes mellitus), combined, would preclude gainful employment for which the Veteran's education and occupational experience would otherwise qualify him. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. In offering any opinion, the examiner should consider the full record, to include service treatment records, medical records, the Veteran's lay statements, and any appropriate medical literature. If the examiner is unable to give an unemployability opinion based on both service-connected disabilities, then the claims file must thereafter be forwarded to an appropriate examiner who will make such a determination. 3. Review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs