Citation Nr: 1331613 Decision Date: 10/01/13 Archive Date: 10/07/13 DOCKET NO. 10-39 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to erectile dysfunction (ED), claimed as impotence, to include as secondary to service-connected diabetes mellitus, type II (DM). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In October 2010, the Veteran withdrew his request for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2012). In February 2013, the Board referred the Veteran's claim to a specialist affiliated with the Veterans Health Administration (VHA) for an opinion. That opinion was received in March 2013, and the opinion is sufficient on which to base a decision at this time. FINDING OF FACT The Veteran's erectile dysfunction (ED) was caused by his service-connected diabetes mellitus, type II (DM). CONCLUSION OF LAW 1. The Veteran's ED was caused by his service-connected DM. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to notify and assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, No. 2009-7075 (Fed. Cir. Sept. 14, 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2012). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also 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), citing Gilbert, 1 Vet. App. at 54. Analysis On the January 2006 claim for benefits, the Veteran indicated that his DM began in September 1999 and his ED began in February 2004. The medical evidence of record confirms the date of the diagnosis of DM, but not of the ED. During an August 2009 VA examination, the Veteran reported a history of ED since 1971 and DM since 1997. The Veteran also noted taking testosterone for the ED for a few years. Given the above history, the examiner stated that the Veteran's ED predated his DM by at least three decades and, thus, it was not secondary to DM. Noting that the Veteran's testosterone level was low, the examiner further stated that the Veteran's ED was due to hypogonadism. In a November 2009 statement, the Veteran asserted that the ED he experienced in 1971 had been an isolated incident and he did not have any problems until 2004. He also asserted that he had taken testosterone for two months, not years, as stated in the August 2009 examination report. In a December 2012 VA examination report, the above examiner noted that the Veteran had a variety of medical conditions that are known to cause ED. The examiner also noted his prior August 2009 opinion that the proximate cause of the Veteran's ED was hypogonadism as his testosterone level was low. The examiner observed that a subsequent test showed a low normal testosterone level. The examiner noted that, even though diabetes is a recognized medical condition associated with ED, the Veteran's other life-long life-style associations, including a history of alcoholism, cocaine addiction, cigarette smoking, marijuana use, and depression, were the proximate cause for his ED, in addition to the hypogonadism. The examiner again observed that the ED started many years before the DM, but that it had worsened in the last four to five years. The Board notes that the examiner's observation that the Veteran's ED had worsened in the last four to five years, opened the possibility that it may have been aggravated by the DM. However, the examiner did not provide an opinion as to whether the Veteran's ED had been aggravated by the service-connected DM. The Board notes further that the examiner based his opinion in part on the fact that the ED predated the DM. However, the evidence shows that the DM was diagnosed in September 1999, and the Veteran has asserted that although he had ED in 1971, it had resolved and he did not develop the current ED until 2004. Here, the Board notes that the Veteran is competent to give evidence about observable symptoms such as problems with erections. Layno v. Brown, 6 Vet. App. 465 (1994). There is also no medical evidence that he has had ED since 1971 or prior to 2004. Thus, the Board finds that the Veteran's ED had its onset in February 2004. As the December 2012 VA examiner' s opinion was incomplete and inadequate, the Board requested an opinion from a VHA specialist in February 2013. The pertinent question in the Board's mind, at that time, was whether the Veteran's ED was secondary to his service-connected DM. A VHA opinion was received in March 2013. A thorough review of the file was conducted. The VHA specialist opined that the Veteran's ED is at least as likely as not secondary to a combination of multiple factors, including a long-standing history of psychological issues, a past history of alcohol and drug abuse, depression (with history of suicide attempts and hospitalization for psychological problems, and psychological and psychiatric treatments), low-low normal testosterone levels, DM (diagnosed in 1999) and hypertension since 1999. He also opined that all the multiple factors noted had contributed equally to the Veteran's ED. His rationale was that hypertension, DM, low level of testosterone, alcoholism and other forms of substance abuse, and depression, are known causes of ED. In rendering his opinion and rationale, the specialist also noted that the Veteran's medical records indicated that he had been treated for his medical conditions with various forms of medication. Specifically, the specialist noted that the Veteran was diagnosed with DM in September 1999, and that he had been started on a small dose of glyburide at that time. By 2003, his dosage of glyburide had increased and another medication, metformin, had been added, as well as oral hypoglycemic. The specialist also noted that the Veteran had a history of hypertension since 1999, for which he was taking high blood pressure medications, including Norvasc, lisinopril, and hydrochlorothiazide in 2003. In addition, the specialist noted that the Veteran was given epidural injections for symptoms of radiculopathy in 2009. Finally, the specialist noted that the Veteran had also been receiving treatment, including medication, for mental health issues, including posttraumatic stress disorder and depression. The Board finds that the March 2013 VHA opinion is the most probative opinion of record. The August 2009 and December 2012 VA opinions are flawed for the reasons previously stated. Thus, based on the positive findings of the March 2013 opinion, along with the Veteran's competent and credible assertions, that he developed his currently diagnosed ED in 2004, years after his initial diagnosis of DM in 1999, and that his ED is caused by his service-connected DM, the Board finds that service connection for ED, is warranted. ORDER Service connection for erectile dysfunction is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs