Citation Nr: 1518186 Decision Date: 04/28/15 Archive Date: 05/05/15 DOCKET NO. 13-17 206 ) DATE ) ) Received from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for erectile dysfunction as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and D.C. ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. Jurisdiction was later transferred to the Wichita, Kansas RO. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in December 2013. A transcript of the hearing is in the Veteran's file. During his hearing, the Veteran testified as to symptoms of an acquired psychiatric disorder and a low back disability, which he attributed to his active service. The Veteran's hearing testimony also raised claims of entitlement to a higher disability rating for service-connected peripheral neuropathy of the right and left lower extremities. These claims are referred to the agency of original jurisdiction (AOJ) for appropriate disposition. The issues of entitlement to service connection for peripheral neuropathy of the right and left upper extremities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving all doubt in favor of the Veteran, erectile dysfunction is proximately due to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus, are met. U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303. To establish service connection on a direct basis, there must be (1) competent evidence of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be established on a secondary basis where a nonservice-connected disability is proximately caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, there must be (1) a current disability; (2) a service-connected disability; and (3) evidence that the current disability is proximately caused or aggravated by the service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Service connection for diabetes mellitus has been established. In May 2009, the Veteran was diagnosed with erectile dysfunction by a non-VA physician, Dr. S.S. At that time, Dr. S. advised the Veteran that erectile dysfunction is a "standard side effect" of hypertension and diabetes mellitus, as well as the medications used to treat these disorders. The Board notes that service connection has not been established for hypertension. In a June 2010 treatment record, Dr. S. noted that "in all probability, [erectile dysfunction] is secondary to his antihypertensive therapy and diabetes." The Veteran was afforded a VA diabetes mellitus examination in April 2012. There is no indication that the examiner reviewed the evidence of record. There is no mention of a history of erectile dysfunction, nor are there any comments as to whether such a disorder is proximately due to or caused by the Veteran's diabetes mellitus. As the examination report does not take into account the Veteran's diagnosis of erectile dysfunction or Dr. S.'s findings as to its etiology, the examination is of little probative value. Dr. S.'s conclusions that the Veteran's erectile dysfunction is attributable in part to his service-connected diabetes mellitus are based upon his treatment of the Veteran and his own professional judgment. The factual basis upon which Dr. S. premised his findings is consistent with the evidence of record. There is no probative evidence which contradicts it. Thus, Dr. S.'s opinion is of greater probative value. Although Dr. S. did not quantify the percent of erectile dysfunction caused by the non-service-connected hypertension and the percent of erectile dysfunction caused by the service-connected diabetes mellitus, it was nevertheless his opinion that the erectile dysfunction was in part caused by the diabetes mellitus. As a result, after resolving any benefit of the doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise. Service connection for erectile dysfunction as secondary to diabetes mellitus is warranted. ORDER Service connection for erectile dysfunction, as secondary to service-connected diabetes mellitus, is granted. REMAND A June 2012 statement from Dr. S. indicates that nerve conduction studies showed diffuse neuropathy in both of the Veteran's upper extremities. The most recent records from Dr. S. are dated November 2011. Updated treatment records from Dr. S. are likely relevant to the claims on appeal, and should be obtained. 38 C.F.R. § 3.159(c)(1). The Veteran's VA treatment records also reflect reports of neurological abnormalities in the upper extremities since February 2013. The Veteran has not been afforded a VA examination to determine the etiology of the neurological symptoms affecting his upper extremities; thus, an examination must be scheduled upon remand. See 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Updated VA treatment records must also be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request his written authorization to obtain Dr. S.'s records since November 2011, as well as any other private doctor who has treated the Veteran for neuropathy of the upper extremities. Upon receipt of such, take appropriate action to obtain the identified records. The Veteran must be informed that in the alternative he may obtain and submit the records himself. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain VA treatment records since May 2013. 3. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claim file, to include all electronic files, must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any identified neuropathy of the right and/or left upper extremities is caused or aggravated by his service-connected diabetes mellitus. In providing this opinion, the examiner must address Dr. S.'s June 2012 diagnosis of diffuse polyneuropathy in a diabetic patient. The term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. If aggravation of upper extremity neuropathy by service-connected diabetes mellitus is found, the examiner must attempt to establish a baseline level of severity of the neuropathy prior to aggravation by the service-connected diabetes mellitus. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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 matters 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). ______________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs