Citation Nr: 1333443 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-30 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type 2. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type 2. 3. Entitlement to special monthly compensation for loss of use of a creative organ. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran had active duty service from November 1966 to March 1971. These matters come before the Board of Veterans' Appeals (Board) from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied entitlement to service connection for hypertension and erectile dysfunction, and entitlement to special monthly compensation based on loss of use of creative organ. The issue of entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type 2, and entitlement to special monthly compensation for loss of use of a creative organ is 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 Competent medical evidence of record shows that the Veteran's hypertension has been aggravated by his service-connected diabetes mellitus, type 2. CONCLUSION OF LAW The criteria for entitlement to service connection for hypertension as secondary to service-connected diabetes mellitus, type 2 have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS 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) redefined VA's duty to 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) (2013). 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). In view of the Board's decision, which constitutes a full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Service connection - laws and regulations 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) medical 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) medical 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (complaints of pain alone do not meet the current disability threshold); Evans v. West, 12 Vet. App. 22, 31-32 (1998). More recently, the Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McClain v. Nicholson, 21 Vet. App. 319 (2007). Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established prior to any aggravation. 38 C.F.R. § 3.310(b). If certain chronic diseases such as hypertension become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disability during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Court has recently held that, for chronic diseases listed under 38 C.F.R. § 3.309(a), service connection can be established by showing that the disability has been chronic since active duty. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to listed chronic conditions). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also 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. Savage, 10 Vet. App. at 495-96; 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). "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)). 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, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[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"). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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"). Service connection may also 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. 38 C.F.R. § 3.303(d). 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. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran has contended that his hypertension is secondary to his service-connected diabetes mellitus, type 2. Private medical records from Robert G. Pyle, M.D., dated from April 1993 to November 1994, and private medical records from Thomas M. Buzbee, M.D., dated from February 1991 to July 2006 show treatment for hypertension and diabetes mellitus, type 2. The Veteran was provided with a VA examination in July 2007. The Veteran reported that he was diagnosed with hypertension in 1994. The examiner diagnosed hypertension, which was not secondary to diabetes mellitus, as it existed prior to a diagnosis of diabetes mellitus, therefore it was not caused by diabetes mellitus. However, the examiner opined that his hypertension was aggravated by diabetes mellitus, based on the addition of a medication to control his hypertension. The examiner found that this reflected aggravation by his diabetes mellitus. The Veteran was provided with another examination in March 2012. The examiner opined that the Veteran's hypertension was not aggravated by his service-connected coronary artery disease. He provided the rationale that the Veteran was diagnosed with coronary artery disease but did not require intervention, and that his coronary artery disease was not severe enough to impact his hypertension or cause any aggravation of his pre-existing condition. The Veteran has been diagnosed with hypertension. The July 2007 VA examiner opined that the Veteran's service-connected diabetes mellitus, type 2 has aggravated his hypertension. The examiner provided the rationale that the Veteran required additional medications to control his hypertension. See Nieves-Rodriguez v. Peake, supra. No other competent medical opinion has been submitted with regard to the affect of his service-connected diabetes mellitus, type 2 on his hypertension. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection for hypertension have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for hypertension is granted. REMAND The Veteran was provided a VA examination in July 2007 to determine whether the Veteran had erectile dysfunction secondary to his service-connected diabetes mellitus, type 2. The Veteran reported that he had symptoms of erectile dysfunction for 10 years at the time of the examination. The examiner opined that erectile dysfunction was not secondary to diabetes mellitus, since it existed prior to the diagnosis of diabetes mellitus. However, the examiner did not provide an opinion as to whether the Veteran's service-connected diabetes mellitus, type 2 has aggravated his erectile dysfunction beyond the natural progression of the condition. On remand, such an opinion should be obtained. The Board finds that the issue of SMC base don loss of use of a creative organ is inextricably intertwined with the issue of entitlement to service connection for erectile dysfunction because a favorable decision on service-connection for impact the decision on entitlement to SMC and, therefore, a decision on this SMC issue is also remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for an examination to determine the nature of etiology of his erectile dysfunction. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current erectile dysfunction has been caused or aggravated by his service-connected diabetes mellitus? Aggravation means a permanent worsening beyond the natural progression of the disease. The examiner must provide a complete rationale for each opinion given. 2. If any benefit on appeal remains denied, the RO/AMC should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs