Citation Nr: 1333151 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 07-10 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for erectile dysfunction to include as due to diabetes mellitus. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a skin disability to include as due to exposure to herbicides. 3. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left upper extremity. 4. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right upper extremity. 5. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 6. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 7. Entitlement to an increased disability rating for diabetes mellitus, currently rated as 20 percent disabling. 8. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran performed active military service from March 1965 to February 1967. This appeal arises to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction has since been transferred to the RO in St. Petersburg, Florida. The United States Court of Appeals for Veterans Claims (Court) determined that where, as here, a claimant, or the record raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009). The Veteran has claimed that he cannot work due to diabetes mellitus and its complications. The Board has therefore added a TDIU claim to page 1. Further development is needed to properly adjudicate the TDIU claim. The Board has reviewed the veteran's virtual VA file and has considered all of the additional relevant records contained therein. The issue of entitlement to service connection for a psychiatric disorder has been raised by the Veteran's representative and is hereby REFERRED to the Agency of Original Jurisdiction for adjudication. The issues of the disability rating of peripheral neuropathy of the bilateral upper and lower extremities, and diabetes mellitus, entitlement to TDIU and the application to reopen the claim for service connection for a skin disability 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 Veteran's current erectile dysfunction is caused by his service-connected type II diabetes mellitus. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction as secondary to service-connected type II diabetes mellitus have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), is necessary. Legal Criteria and Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2012). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a) (2012). A claim for secondary service connection generally requires competent evidence of a causal relationship between the service-connected disability and the non-service-connected disease or injury. See Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). There must be competent evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service connected. See 38 C.F.R. § 3.310(b) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. See 38 C.F.R. § 3.310(b) (2012). In cases of aggravation of a Veteran's non-service-connected disability by a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.322 (2012). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for erectile dysfunction as secondary to service-connected diabetes mellitus. In support of his claim, the Veteran has asserted that, since being diagnosed with diabetes mellitus, he has suffered from erectile dysfunction for which he has been prescribed medication. See April 2006 statement from the Veteran. Review of the record reveals that the Veteran was diagnosed with diabetes mellitus in 2005 and, in 2006, he began reporting that he suffered from erectile dysfunction. The Veteran was afforded a VA genitourinary examination in June 2006 where he reported being unable to achieve vaginal penetration for 15 to 20 years. The VA examiner noted that the Veteran had diabetes mellitus for one and a half years and hypertension for two or three years. As a result, the VA examiner opined that the Veteran's erectile dysfunction is not related to his diabetes mellitus or hypertension, as the Veteran suffered from erectile dysfunction for many years prior to the diagnoses of those disabilities. Similarly, the physician who conducted an April 2009 VA diabetes mellitus examination noted the Veteran's complaints of worsening erectile dysfunction but, when asked about the most likely etiology of the erectile dysfunction, the examiner noted that the Veteran drinks beer, although he denies abuse. Nevertheless, the April 2009 VA examiner also noted that the contributing cause of the Veteran's erectile dysfunction is diabetic nephropathy. The June 2006 and April 2009 VA examinations are considered competent medical evidence; however, the medical opinion provided by the June 2006 VA examiner is considered incomplete because it did not address the issue of whether the Veteran's erectile dysfunction is likely aggravated by his service-connected diabetes mellitus. Likewise, the Board finds that the April 2009 VA examiner's notation that the Veteran's diabetic nephropathy is a contributory cause of his erectile dysfunction seems to suggest that the Veteran's erectile dysfunction is related to his diabetes mellitus and/or the complications thereof. A Veterans Health Administration (VHA) specialist's opinion was obtained in November 2012. At the time, the specialist stated that "[i]t cannot be said that this Veteran's current erectile dysfunction is aggravated by his diabetes mellitus. . . This reviewer has not been provided with any recent medical records (in the last 10 years), so it is impossible to make any determination on the progression of this veteran's diabetes or his erectile dysfunction." A review of the claim file shows that it contains VA outpatient treatment records dating from at least April 2005 through April 2009. Accordingly, the Board finds the opinion to be inadequate. A second VHA opinion was obtained in August 2013. The specialist, after a review of the claim file and prior opinions, stated that there is t least a 50 percent probability that the Veteran's erectile dysfunction is due to his service connected diabetes. He reasoned that both of these problems were diagnosed at the same visit in April 2005. As to aggravation, he opined that there is at least a 50 percent probability that the veteran's diabetes is aggravating his erectile dysfunction. He reasoned, there is documentation that erectile dysfunction has worsened requiring increased doses of Viagra medications. Based on the August 2013 VHA specialist's well-informed, well-reasoned, and fully articulated opinion, the Board finds that a sufficient nexus exists between the Veteran's erectile dysfunction and his service-connected diabetes mellitus, where the opinion indicated that there was at least a 50 probability that the Veteran's erectile dysfunction was caused by and/or aggravated by his diabetes mellitus. Accordingly, all doubt with respect to this claim is resolved in favor of the Veteran and his claim for service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus is granted. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus is granted. REMAND The Veteran seeks an increased disability rating for peripheral neuropathy of the bilateral upper and lower extremities, and diabetes mellitus. He also seeks entitlement to TDIU and to reopen his claim for service connection for a skin disability to include as due to herbicide exposure. After a careful review of the evidence of record the Board finds that additional development is needed prior to deciding the claims. The Veteran was scheduled for a Travel Board hearing to be held in June 2011. In a May 2011 letter, he stated he could not personally attend the hearing due to his health and lack of funds for travel. The letter stated that he wished his representative to make arguments for him at the hearing. It appears from the record, that the scheduled hearing was cancelled per the Veteran's request. However, a review of the claim file indicates that the Veteran indeed wanted a hearing where his representative presented argument on his behalf. In two separate letters dated in September 2011, the Veteran stated he was displeased with his representative as he was expecting the representative to appear at his hearing. He also wrote letters in attempts to file a complaint against his representative for his failure to appear at the hearing. These letters indicate the Veteran indeed wanted a hearing despite his inability to personally appear. On remand, the Veteran should be given the opportunity to elect to have a hearing. A review of the Veteran's Virtual VA file reveals a September 2012 rating decision addressing issues not currently on appeal, but concerning the Veteran's lower and upper extremities. The rating decision references a VA examination dated in September 2012. A review of both the paper and Virtual files shows this VA examination has not been associated with the record. As it appears the examination pertains, at least in part, to the Veteran's lower and upper extremities, it is entirely possible that it contains relevant evidence regarding the pending claims for an increased rating for peripheral neuropathy. Accordingly, the examination must be associated with the claim file. In a rating decision of September 2008, the RO denied an increased disability rating for diabetes mellitus Type II. In an October VA Form 9, the Veteran expressed his disagreement with the denial of an increased disability rating for diabetes mellitus Type II. The Board accepts this as a Notice of Disagreement with the September 2008 rating decision. A review of the file shows that a statement of the case as to the issue of the disability rating of diabetes mellitus has not been issued. As a Statement of the Case was not issued and the Board is required to remand this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The Veteran has alleged that diabetes mellitus precludes him from securing or following a substantially gainful occupation. This is an implied claim for TDIU. Rice, supra. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2012). In this case, the TDIU claim has not been developed for Board review and is remanded in accordance with the Court's holding in Rice, supra. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and offer him the opportunity to appear at a hearing in front of the Board. The Veteran should be given the option of an in-person hearing or a videoconference hearing. If the veteran replies he wishes a hearing, one should be scheduled. 2. The RO/AMC should obtain and associate with the claim file, paper or Virtual, the September 2012 VA examination. 3. Issue the Veteran a Statement of the case with regards to the issue of the disability rating of diabetes mellitus. Only if the Veteran perfects an appeal should the claims be certified to the Board and after any necessary development has been completed. 4. The AMC should develop the TDIU claim as necessary. 5. Following the above, the AMC should review all the relevant evidence and re-adjudicate the claims. If the desired benefits are not granted, an appropriate supplemental statement of the case (SSOC) should be issued. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The appellant 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs