Citation Nr: 1506235	
Decision Date: 02/11/15    Archive Date: 02/18/15

DOCKET NO.  13-02 289	)	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.  

2.  Entitlement to an initial disability rating higher than 10 percent for diabetic peripheral neuropathy of the right lower extremity 

3.  Entitlement to an initial disability rating higher than 10 percent for diabetic peripheral neuropathy of the left lower extremity 

4.  Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling.  

5.  Entitlement to an increased disability rating for type II diabetes mellitus, currently evaluated as 20 percent disabling.  

6.  Entitlement to special monthly compensation (SMC) for loss of use of a creative organ.  

7.  Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2009.


REPRESENTATION

Veteran represented by:	T. Rhett Smith, Attorney at Law


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to November 1969.  

These matters are before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

The Board notes that the October 2009 rating decision reflects a denial of higher evaluations for PTSD and type II diabetes mellitus, a denial of service connection for erectile dysfunction, and a denial of SMC and a TDIU.  Correspondence from the Veteran in May 2010 has been construed as a notice of disagreement (NOD) with the October 2009 rating decision.  See Ortiz v. Shinseki, 23 Vet. App. 353, 361 (2010) (indicating that "mere dissatisfaction is the essence of an NOD").  The Board notes that the September 2012 Decision Review Officer decision reflects that the rating increase to 70 percent for PTSD was effective, June 1, 2009, the date of the claim for increase.  In addition, the October 2009 rating decision was certified on appeal in March 2013.  

A September 2012 rating decision reflects that a TDIU was awarded based on service-connected disabilities effective June 1, 2009.  In addition, service connection was granted for peripheral neuropathy of the right lower extremity and left lower extremity associated with service-connected type II diabetes mellitus and initial 10 percent ratings were assigned.  

The September 2012 statement of the case (SOC) addresses the issues of service connection for erectile dysfunction, increased ratings for PTSD and type II diabetes mellitus, along with the initial ratings assigned for peripheral neuropathy of the right and left lower extremity, as well as SMC for loss of use of a creative organ.  The Veteran perfected an appeal in November 2012.  As such, the Board has identified the issues as set forth on the title page.

The issues of entitlement to service connection for hearing loss and tinnitus, as well a claim to reopen the claim of service connection for vertigo being referred were raised in the Veteran's June 2012 correspondence, but have not been adjudicated by the agency of original jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014).  

The issues of initial higher ratings for peripheral neuropathy of the right and left lower extremity along with the increased rating claims for type II diabetes mellitus and PTSD, and the TDIU being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's erectile dysfunction is causally related to his service-connected type II diabetes mellitus.

2.  The Veteran's erectile dysfunction constitutes the loss of use of a creative organ.


CONCLUSIONS OF LAW

1.  Erectile dysfunction is proximately due to service-connected type II diabetes mellitus.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310 (2014).

2.  The criteria for SMC based on loss of use of a creative organ have been met.  38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a)(1)(ii) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran maintains that his erectile dysfunction and SMC based on loss of use of a creative organ due to erectile dysfunction are related to service-connected disability.  

Service connection may be granted for any diseases or disabilities that are proximately due to, or aggravated by a service-connected disease or injury.  38 U.S.C.A. § 1110 (West 2014) 38 C.F.R. § 3.310(a), (b) (2014).  His service-connected disabilities include type II diabetes mellitus, hypertension, and PTSD.  

A September 2011 VA urology treatment record reflects a diagnosis of erectile dysfunction noted to be most likely secondary to microvascular disease related to the Veteran's longstanding diabetes along with hypertensive vascular disease.  Although a July 2009 VA examiner concluded that erectile dysfunction was not caused by or related to diabetes mellitus, a risk factor was noted to PTSD.  In addition, and although the August 2012 VA examiner opined that erectile dysfunction is not related to diabetes mellitus, a risk factor was noted to be hypertension.  

The evidence is in favor of the claim and resolving reasonable doubt in the Veteran's favor, service connection for erectile dysfunction is warranted on a secondary basis, most likely caused by diabetes mellitus.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Having established entitlement to VA compensation for erectile dysfunction, his claim for SMC based on loss of use of a creative organ under 38 U.S.C.A. § 1114(k) (West 2014); 38 C.F.R. § 3.350(a)(1)(ii) (2014) is also warranted.  


ORDER

Service connection for erectile dysfunction secondary to service-connected type II diabetes mellitus is granted.

SMC for loss of use of a creative organ is granted. 


REMAND

The Veteran's service-connected disabilities on appeal were last evaluated by VA in August 2012, over two years ago.  In view of the length of time since the Veteran was last examined and the state of the record, the evidence of record may not accurately reflect the current severity of these disabilities.  A contemporaneous VA examination is needed in order to make an informed decision regarding the current level of severity of his service-connected type II diabetes mellitus and associated lower extremity neuropathy, and PTSD.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination-particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).  

The issue of entitlement to a TDIU was on appeal.  The September 2012 rating decision noted that the effective date was set as June 1, 2009, as this was this earliest date that the schedular criteria for a TDIU were met under 38 C.F.R. § 4.16(a) (2014).  Nevertheless, a TDIU could be possible for an earlier date under 38 C.F.R. § 4.16(b) on an extraschedular basis because at the least, the pending claim for increase for diabetes mellitus was received in April 2009.  Thus, this issue is still on appeal.  Accordingly, the issue must be readjudicated and a supplemental statement of the case issued if not granted.

Prior to the examinations, any outstanding records of pertinent treatment must be obtained and added to the record.

Accordingly, the case is REMANDED for the following actions:


1.  Obtain the Veteran's VA treatment records dated since September 2012.

2.  Thereafter, schedule the Veteran for a VA examination for type II diabetes mellitus and peripheral neuropathy of the lower extremities by an appropriate medical professional.  The entire claims file, to include all electronic files, must be reviewed by the examiner. 

The examiner is to conduct all indicated tests. 

The examiner is to describe the Veteran's symptoms due to diabetes mellitus in detail, to specifically include whether regulation of activities is required.  "Regulation of activities" is the avoidance of strenuous occupational and recreational activities.

The examiner is to report whether the diabetes mellitus causes episodes of ketoacidosis; and/or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider.  

The examiner is to report whether the diabetes mellitus requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or other complications.

The examiner should also describe what, if any, complications attributable to the Veteran's service-connected diabetes mellitus exist and should specifically describe the nature and severity of each such complication.  If the Veteran does not suffer any such complications as a result of his diabetes mellitus, the examiner should so state.

Regarding the service-connected peripheral neuropathy of the lower extremities, the examiner is to specifically note all symptomatology and manifestations caused by the peripheral neuropathy.  The examiner should specify whether the peripheral neuropathy of the lower extremities is mild, moderate, moderately-severe, or severe.  The examiner is to report whether there is complete paralysis in the leg and foot due to the peripheral neuropathy and whether there is evidence of foot drop and/or a loss of movement or weakened movement below the knee and in the foot and ankle.

The examination report must include a complete rationale for all opinions expressed.  

3.  Also, schedule the Veteran for a VA PTSD examination by an appropriate medical professional.  The entire claims file, to include all electronic files, must be reviewed by the examiner. 

The examiner is to conduct all indicated tests. 

The examiner is to describe the Veteran's symptoms due to PTSD in detail, to specifically include whether it results in total social and occupational impairment.

The examination report must include a complete rationale for all opinions expressed.  

4.  After completing all indicated development, readjudicate the claims remaining on appeal in light of all the evidence of record.  This must include the issue of entitlement to a TDIU prior to June 1, 2009 (including on an extraschedular basis).  If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).




______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs