Citation Nr: 1334435 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-06 364A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for varicose veins of the ankles, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction, claimed as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for hypertension, claimed as secondary to service-connected diabetes mellitus. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty for twenty years from August 1952 to August 1972. He died in January 2011; the appellant is his surviving spouse. In September 2011, the RO notified the appellant that her status as a substituted claimant had been recognized and approved. A person eligible for substitution is defined as "a living person who would be eligible to receive accrued benefits due to the claimant . . ." See 38 U.S.C. § 5121A (West Supp. 2013). Accordingly, the appellant is substituted in place of the Veteran to prosecute the appeal. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision that, in pertinent part, denied service connection for disability exhibited by the right leg being shorter (3/8-inch) than left; chronic obstructive pulmonary disease; varicose veins of the ankles; PTSD; residuals of head injury due to dream of mortar attack; prostatitis; erectile dysfunction; and hypertension. In September 2010, the Board denied the claims for entitlement to service connection for a disability exhibited by the right leg being shorter (3/8-inch) than the left, for chronic obstructive pulmonary disease, for residuals of head injury due to dream of mortar attack and for prostatitis, claimed as due to exposure to herbicides. In addition, the Board remanded the remaining claims for additional development. In March 2013, the Board denied entitlement to service connection for PTSD, and remanded the remaining issues for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence of record does not reflect that the Veteran's varicose veins of the ankles were proximately due to, the result of, or aggravated by his service-connected diabetes mellitus, type 2, or that they were related to his military service. 2. The evidence of record does not reflect that the Veteran's erectile dysfunction was proximately due to, the result of, or aggravated by his service-connected diabetes mellitus, type 2, or that it was related to his military service. 3. The evidence of record does not reflect that the Veteran's hypertension was proximately due to, the result of, or aggravated by his service-connected diabetes mellitus, type 2, or that it was related to \his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for varicose veins of the ankles have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2013)) defined VA's duty to assist a claimant 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). Under the VCAA, VA 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a pre-adjudication letter dated in April 2005, the RO notified the Veteran of the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). This letter also informed him of the types of evidence that would be considered to substantiate his claims and the information and evidence needed to sustain a claim for service connection. A September 2006 letter met the notice requirements set out in Dingess. This letter was provided after the initial RO decision was issued with regard to these claims; however, the deficiency in the timing of this notice was remedied by readjudication of the issues on appeal in subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, no additional notification is necessary. Furthermore, as the appellant is substituted in place of the Veteran and not undertaking a new claims process, the notification letters sent to the Veteran are sufficient. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). Post-service medical records have been associated with the claims file. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this case in September 2010 in order to provide the Veteran with a VA examination to determine whether his hypertension, erectile dysfunction, or varicose veins were caused or aggravated by his service-connected diabetes mellitus, type 2. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was provided with a VA examination in November 2010. However, this examiner noted only that the Veteran's hypertension, erectile dysfunction and varicose veins were not caused by or related to his service-connected diabetes mellitus, but did not provide an opinion as to whether his service-connected diabetes had aggravated these disorders. Unfortunately, the Veteran then died in January 2011. His spouse was substituted in his place as the appellant in September 2011. In March 2013, the Board remanded these issues again in order to obtain VA medical opinions as to whether the Veteran's hypertension, erectile dysfunction and varicose veins were aggravated by his service-connected diabetes mellitus. The opinions were provided in April 2013. The Board finds that the opinions provided are adequate for decision purposes, as they were based upon pertinent facts in the record and provided a rationale for the findings. In view of these actions, there was substantial compliance with the Board's remands. Although an examination was no longer possible, appropriate opinions were obtained. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. 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 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing service connection generally requires (1) evidence of a current disability; (2) 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); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In addition, certain chronic diseases, such as hypertension, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). 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). 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. McLain 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 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). Because service connection is not being granted for any of the claims on appeal on the basis of aggravation by a service-connected disability, it is not necessary to determine which version of the regulation is applicable. 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background and analysis The appellant continues the Veteran's contentions-that service connection for hypertension, for erectile dysfunction, and for varicose veins of the ankles is warranted on the basis that each disability is proximately due to or a result of his service-connected diabetes mellitus. Service connection - hypertension Service treatment records do not reflect any treatment for or diagnosis of hypertension. Private medical records, dated in February 1997 from Okaloosa Cardiology, reflect new onset of diabetes and essential hypertension. Statements received from the Veteran's treating physician, Dr. Senechal, in October 2001, March 2004, November 2004, and in August 2006 reflect that the Veteran had multiple medical problems, to include hypertension. At his November 2010 VA examination, the Veteran reported that he had good blood pressure control, based on home monitoring. The diagnosis given was hypertension, controlled on oral medications. The examiner opined that it was not caused by or related to service, noting that the Veteran's service treatment records and his June 1972 separation physical were silent. The examiner noted that hypertension had its onset at the same time as diabetes; hence it was not caused by or related to service-connected diabetes mellitus. The Veteran's claims file was reviewed in April 2013 by another VA physician. After review of the claims file, the physician found that the Veteran's hypertension was less likely than not aggravated beyond natural progression by service-connected diabetes mellitus. The physician noted that several consults showed controlled blood pressure with hypertensive medications regardless of diabetes mellitus, including at his last visit in July 2010. The physician also noted that online medical literature in January 2012 stated that risk factors for hypertension included genetics, excess sodium intake, excess alcohol intake, obesity and weight gain, physical inactivity, dyslipidemia, certain personality traits, such as hostile attitudes and time urgency/impatience, Vitamin D deficiency. Analysis The Board finds that the evidence of record does not support a grant of entitlement to service connection for hypertension. The Veteran was diagnosed with hypertension during the appeals period, and therefore has "current diagnosis" of hypertension and the current disability element of the claim is met. Service treatment records do not show any treatment for or diagnosis of hypertension, and medical records reflect a diagnosis long after the Veteran's discharge from active duty. It is not shown that hypertension manifested to a compensable degree within one year of his separation from service. Significantly, there have been no contentions, by the Veteran or the appellant, that hypertension is directly related to active duty service. Moreover, the November 2010 VA examiner provided a persuasive opinion as to why the Veteran's hypertension is not related to service. Therefore, the salient issue in this claim is whether the evidence reflects a link between hypertension and his service-connected diabetes mellitus, type 2, either by causation or aggravation. The Veteran and the appellant have contended that the Veteran's hypertension is secondary to his service-connected diabetes mellitus, type 2. However, there is no suggestion in the claims file that the Veteran or the appellant have had the requisite medical expertise to provide such a complex medical opinion with any evidentiary value. Although a claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). The competent evidence of record is against a finding that the Veteran's service-connected diabetes mellitus, type 2, has caused or aggravated his hypertension. The VA examiner who provided the November 2010 opinion concluded that the Veteran's hypertension was not caused by diabetes mellitus, type 2, and provided an adequate rationale-that these two disorders began in the same timeframe. In addition, the VA physician who provided the opinion in April 2013 found that the Veteran's hypertension was not aggravated by diabetes mellitus, type 2, since the Veteran's blood pressure was well controlled with medications even well after the diagnosis of hypertension. Therefore, as the preponderance of the competent evidence of record does not link the Veteran's hypertension to his service-connected diabetes mellitus, type 2, there is no basis upon which to grant entitlement to service connection on a secondary basis in addition to a direct basis, and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Service connection - erectile dysfunction Service treatment records do not reflect any treatment for or diagnosis of erectile dysfunction. Private medical records showing treatment from October 1997 and October 1998 from the Veteran's private physician, Dr. Long, reflect that the Veteran reported the onset of erectile dysfunction in 1991. The impression was erectile dysfunction, probably organic, suspect vascular etiology. The private physician noted that he discussed risk factors with the Veteran, which included age, hypertension, smoking, history of peripheral vascular disease, and diabetes mellitus. Statements received from the Veteran's treating physician, Dr. Senechal, in October 2001, March 2004, November 2004, and in August 2006 reflect that the Veteran had erectile dysfunction. During a VA examination in July 2005, the Veteran reported having erectile dysfunction, without treatment. The examiner diagnosed Type 2 diabetes with no known secondary conditions at this time. A June 2010 VA medical record showed that the Veteran had male erectile dysfunction, and that it was stable. A November 2010 VA examination reflects the examiner's opinion that the Veteran's erectile dysfunction was not caused by or related to service or diabetes mellitus, since the onset of erectile dysfunction preceded diabetes by four years. The examiner noted that other erectile dysfunction risk factors included the Veteran's hypercholesterolemia, psychological disorders (depression), hypertension, tobacco, use, dyslipidemia, hypertriglicerides and natural aging. The Veteran's claims file was provided to a VA physician in April 2013 to obtain an opinion as to whether the Veteran's erectile dysfunction was related to or aggravated by his service-connected diabetes mellitus. After carefully reviewing the claims file, the physician opined that the Veteran's erectile dysfunction was less likely than not aggravated beyond natural progression by the Veteran's service-connected diabetes mellitus. The examiner noted that there are several factors causing the Veteran's erectile dysfunction, such as hypotestosteronemia, psychologic conditions (depressive disorder), hypertension, tobacco use, dyslipidemia/hypertriglycerides, and natural aging. The examiner noted that the aging process alone decreased the compliance of the tissues in the corpora cavernosa, as well the production of nitric oxide in the nerves that innervate the corporal smooth muscle within the penis. In addition, the examiner noted that during the latest appointment with the VA, in July 2010, erectile dysfunction was noted to be stable. Analysis The Board finds that the evidence of record does not support a grant of entitlement to service connection for erectile dysfunction. The Veteran was diagnosed with erectile dysfunction during the appeals period, and therefore has "current diagnosis" of erectile dysfunction. Thus, the current disability element of the claim is met. Service treatment records do not show any treatment for or diagnosis of erectile dysfunction, and medical records reflect that the Veteran indicated that it began in 1991, almost twenty years after his discharge from active duty. Significantly, there have been no contentions, by the Veteran or the appellant, that his erectile dysfunction is directly related to active duty service. Therefore, the salient issue in this claim is also whether the evidence reflects a link between erectile dysfunction and his service-connected diabetes mellitus, type 2. The Veteran and the appellant have contended that the Veteran's erectile dysfunction is secondary to his service-connected diabetes mellitus, type 2. However, there is no evidence that the Veteran or the appellant have had the requisite medical expertise to provide such a complex medical opinion with any evidentiary value. See Woehlaert, 21 Vet. App. at 456; Jones, 7 Vet. App. at 137. The competent evidence of record is against a finding that the Veteran's service-connected diabetes mellitus has caused or aggravated his erectile dysfunction. The November 2010 examiner opined that erectile dysfunction was not caused by or related to diabetes mellitus, since the onset of erectile dysfunction preceded diabetes by four years. In addition, the VA physician who provided the opinion in April 2013 found that the Veteran's erectile dysfunction was not aggravated by diabetes mellitus, type 2, since the Veteran's erectile dysfunction was considered stable. Therefore, as the preponderance of the competent evidence of record does not link the Veteran's erectile dysfunction to his service-connected diabetes mellitus, type 2, there is no basis upon which to grant entitlement to service connection on a secondary basis in addition to a direct basis, and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. Service connection - varicose veins Service treatment records do not reflect any treatment for or diagnosis of varicose veins. A November 2004 private medical record mentioned a diagnosis of varicose veins, and chronic venous insufficiency of the legs, hyperlipidemia and obesity. Statements received from the Veteran's treating physician, Dr. Senechal, in October 2001, March 2004, November 2004, and in August 2006 reflect that the Veteran had varicose veins, and chronic venous insufficiency of the legs. The Veteran was afforded a VA examination in March 2007. The examiner noted evidence of venous insufficiency with pigmentation on the lower two thirds of the right lower leg, and swelling and tenderness of the ankles. A July 2010 VA medical record reflects the diagnosis of chronic venous insufficiency which was stable. A November 2010 VA examination report shows the diagnosis of varicose veins with chronic venous insufficiency of the lower extremities. The examiner opined that varicose veins of the lower extremities were not caused by or related to service, as it was diagnosed after service. In addition, the Veteran denied recurrent wound or ulceration after 2008 surgery and was not on any treatment, likewise had not used compression hose in many years. He also reported the onset of varicose veins after service. In April 2013, the Veteran's claims file was forwarded to a VA physician for an opinion as to whether the Veteran's varicose veins were aggravated by his service-connected diabetes mellitus. After reviewing the claims folder, the physician opined that varicose veins were less likely than not aggravated beyond natural progression by service-connected diabetes. The physician noted that the one is not the cause of or related to the other because of different athogenesis. The examiner found that, while diabetes increases the risk of peripheral vascular disease by causing endothelial and smooth muscle cell dysfunction in peripheral arteries due to persistent high glucose levels, varicose veins are veins that have become enlarged and tortuous and the leaflets of the valves no longer meet properly, and the valves do not work (valvular incompetence), brought about by age, family history, obesity, standing or sitting for long periods of time and during pregnancy in women. Analysis The Board finds that the evidence of record does not support a grant of entitlement to service connection for varicose veins. The Veteran was diagnosed with varicose veins during the appeals period, and therefore has "current diagnosis." Thus, the current disability element of the claim is met. Service treatment records do not show any treatment for or diagnosis of varicose veins. Medical records do not show a diagnosis of varicose veins until October 2001. Significantly, there have been no contentions, by the Veteran or the appellant, that varicose veins are directly related to active duty service. At the November 2010 VA examination, he reported that they had their onset after service. Therefore, the salient issue in this claim is whether the evidence reflects a link between varicose veins and his service-connected diabetes mellitus, type 2. The Veteran and the appellant have contended that the Veteran's varicose veins are secondary to his service-connected diabetes mellitus, type 2. However, there is no evidence that the Veteran or the appellant have had the requisite medical expertise to provide such a complex medical opinion with any evidentiary value. See Woehlaert, 21 Vet. App. at 456; Jones, 7 Vet. App. at 137. While a lay person may be competent to recognize the appearance of varicose veins given their readily observable nature on the skin surface, their etiology, including whether they are related to or aggravated by diabetes mellitus is more complex in nature. The competent evidence of record is against a finding that the Veteran's service-connected diabetes mellitus has caused or aggravated his varicose veins. The VA physician who provided the opinion in April 2013 indicated that the Veteran's varicose veins were not caused or aggravated by diabetes mellitus, type 2. The physician provided the rationale that the two disorders were "of different athogenesis," and that while diabetes increases the risk of peripheral vascular disease, varicose veins were brought about by age, family history, obesity, standing or sitting for long periods of time and during pregnancy in women. Thus, based on the physician's opinion, secondary service connection is not a viable medical theory for this claim. Therefore, as the preponderance of the competent evidence of record does not link the Veteran's varicose veins to his service-connected diabetes mellitus, type 2, there is no basis upon which to grant entitlement to service connection on a secondary basis in addition to a direct basis, and the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. ORDER Service connection for varicose veins of the ankles is denied. Service connection for erectile dysfunction is denied. Service connection for hypertension is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs