Citation Nr: 1535886 Decision Date: 08/21/15 Archive Date: 08/31/15 DOCKET NO. 09-01 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran had active service from April 1960 to April 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether erectile dysfunction is related to service-connected disability. 2. Hypertension has not been shown to have onset in service, or to be manifested to a compensable degree within one year from separation, or to be otherwise related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for erectile dysfunction as secondary to diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). The claim regarding service connection for erectile dysfunction is granted below and no further discussion as to the duty to provide notice or assistance is needed for that claim. With respect to the hypertension claim, a letter in June 2007 satisfied the duty to notify. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The Veteran's available service treatment records and post-service VA treatment records have also been obtained. There is no indication that any relevant Social Security Administration records are missing. The Veteran was provided VA medical examinations in December 2008 and October 2012. The Board decided on review that the examinations did not provide sufficient medical evidence to resolve the issue on appeal, and forward the file to obtain an expert medical opinion from a physician affiliated with the Veterans Health Administration (VHA). The requested VHA opinion was rendered in June 2015, and is considered adequate in that it is based on review of the Veteran's medical history, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield, 499 F.3d 1317. Therefore, the Board finds that duties to notify and assist have been satisfied and will proceed to the merits of the issues on appeal Applicable Legal Criteria In general, 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, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Some chronic diseases, including cardiovascular-renal disease to include hypertension, are presumed by law and regulation to have been incurred in service, if they become manifest to a degree of ten percent or more within a corresponding applicable presumptive period. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The law and applicable regulatory provisions pertaining to Agent Orange exposure provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent used in support of military operations in Vietnam during the period beginning from January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram; unless there is affirmative evidence to establish that the Veteran was not exposed to such agent during that service. 38 C.F.R. § 3.307(a)(6). The law and regulations further stipulate the diseases for which service connection may be presumed due to an association with exposure to herbicide agents. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Such diseases shall be service connected if a veteran was exposed to a herbicide agent during active military, naval, or air service, if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) and/or (iv) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The list of presumptive diseases does not currently include hypertension or erectile dysfunction. 38 C.F.R. § 3.309(e). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In Combee v. Brown, the United States Court of Appeals for the Federal Circuit held that when a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed.Cir.1994), reversing in part Combee v. Principi, 4 Vet. App. 78 (1993). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). 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(b) (West 2014); 38 C.F.R. § 3.102 (2104); 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 of a matter, the Secretary shall give the benefit of the doubt to the Veteran. Id. Evidence The Veteran's service treatment records show no indication of any problems with hypertension or erectile dysfunction. At his April 1963 separation examination, he reported no problems referable to these conditions. On examination the evaluation was normal for heart, vascular system, and genitourinary system; and blood pressure was recorded as 118/64 sitting, 118/64 recumbent, and 120/64 standing. A private treatment record dated in December 2000 shows a past medical history of hypertension, which had been treated for more than 12 years; obstructive sleep apnea, diagnosed in November 1992; and impotence. That record contains an assessment of hyperglycemia; history of obstructive sleep apnea treated with nasal CPAP; hypertension; and history of erectile dysfunction, improved with medication. In an October 2001 statement, Louis Lessard, D.O., stated that the Veteran's past medical history was significant for hypertension for more than 12 years; obstructive sleep apnea; impotence; and type II diabetes melitis, which was diagnosed in December 2000. In a February 2007 statement, Rey Alberto H. Franco, M.D., noted that the Veteran's current problems included diabetes mellitus type II; cardiac dysrhythmia with paroxysmal atrial fibrillation; hyperlipidemia; and coronary artery disease, moderately severe. In a March 2007 statement, James Bash, DO, noted the Veteran had been his patient for several years, and had suffered for several years from several medical illnesses including diabetes, atrial fibrillation, hypertension, cholesterol disorder, sleep apnea, and erectile dysfunction. Dr. Bash stated that the Veteran had no significant family history for some of the disorders, and he also had hearing and vision deficit. In a December 2008 statement, Dr. Bash noted that the Veteran had been his patient for the last several years, and that the Veteran suffered from several medical ailments that included diabetes, hypertension, atrial arrhythmia, osteoarthritis, erectile dysfunction and peripheral vascular disease. Dr. Bash opined that the Veteran's diabetes certainly directly affects the other existing medical problems such as hyperlipidemia, peripheral vascular disease, hypertension, and erectile dysfunction. In a January 2009 statement, Brent J. Raap, D.O., wrote that the Veteran was his patient, and that the Veteran was diabetic. He opined that the diabetes has contributed to or caused cardiovascular disease/atrial fibrillation, erectile dysfunction, hypertension, and peripheral neuropathy in the Veteran's fingers and legs. The Veteran underwent VA examination in January 2008. The Veteran reported a history of diabetes mellitus with onset in 2001 or 2002. He denied any symptoms pertaining to diabetes mellitus at present. He reported a history of hypertension with onset in 1993 or 1994. He reported a history of erectile dysfunction with onset in 1990, which he reported was prior to the onset of diabetes mellitus. He reported that at the time of onset of erectile dysfunction he was on treatment for hypertension. The Veteran reported a history of sleep apnea diagnosed in the 1990s, prior to the onset of diabetes mellitus. The examining physician diagnosed: hypertension with onset in 1993; erectile dysfunction, onset in the 1990s, prior to the diagnosis of diabetes mellitus, and not caused or aggravated by diabetes mellitus; and sleep apnea, on continuous positive airway pressure machine, onset prior to onset of diabetes mellitus, not caused or aggravated by diabetes mellitus. The examiner opined that the hypertension was not caused or aggravated by diabetes mellitus. During a September 2009 RO hearing, the Veteran testified about the medical history of his claimed disorders. The Veteran underwent VA examination in October 2012. The examiner diagnosed hypertension; and noted a date of diagnosis of 1993 or 1994, which she determined by medical records on file. The examiner opined that the hypertension was less likely than not (less than 50 percent probability) proximately due to or the result of a service-connected disability (meaning the service-connected diabetes mellitus type II). As rationale, the examiner stated that the medical literature indicated that diabetes mellitus type II does not cause hypertension. The examiner further noted that the onset of the Veteran's hypertension was in 1993/1994, which was prior to the onset of diabetes in 2001 or 2002. The examiner also commented on the opinions submitted from Dr. Raap and Dr. Bash in support of the Veteran's claims, noting that Dr. Raap's opinion did not include a rationale for that opinion, and that Dr. Bash's opinion did not imply that the claimed hypertension is related to diabetes. During the VA examination in October 2012 the examiner noted there was a diagnosis of erectile dysfunction first diagnosed in 1990. The examiner opined that it was less likely than not that the erectile dysfunction was proximately due to or the result of a service-connected disability. As rationale, the examiner stated that the service treatment records were silent for erectile dysfunction; and that the onset of this condition was in 1990 and was due to abnormal testosterone levels and the onset of diabetes mellitus type II was in 2001 or 2002. The examiner concluded that based on the dates of diagnosis of each disorder, the diabetes could not have caused the diabetes. The examiner also opined that the erectile dysfunction was not aggravated by the diabetes. In June 2015 the Board obtained an opinion from a VHA expert, a physician who is a Staff Endocrinologist at the Manchester VA Medical Center. In the VHA opinion, after review of the Veteran's file and medical literature, the VHA expert expressed opinions as to whether it is at least as likely as not (a probability of 50 percent or greater), that any diagnosed hypertension or erectile dysfunction (1) is approximately due to, or the result of, or was aggravated by, one or more of the Veteran's service-connected disabilities; or (2) etiologically related to any aspect of active military service, to include injury or disease in service, including his presumed exposure to tactical herbicides used in Vietnam during the Vietnam Era. As to the first question, the VHA expert answered that it is not at least as likely as not (that is there is a probability of less than 50 percent) that any diagnosed hypertension or erectile dysfunction is approximately due to, or the result of, or was aggravated by, one or more of the Veteran's service-connected disabilities. As rationale, and focusing on the service-connected diabetes mellitus type II, the VHA expert stated that both claimed disorders' diagnoses predated that for diabetes mellitus type II. The VHA expert noted that the diabetes mellitus type II was diagnosed in 2001, whereas the erectile dysfunction and the hypertension were both diagnosed prior to that, in the 1990s in the case of the erectile dysfunction, and 1994 or earlier and even before December 1988 in the case of hypertension. Further, regarding hypertension, the VHA expert noted that the Veteran was diagnosed with obstructive sleep apnea in 1995, and that obstructive sleep apnea is a well-recognized cause of secondary hypertension. As to the second question, regarding hypertension, the VHA expert answered that it is not at least as likely as not (that is, there is a probability of less than 50 percent) that any diagnosed hypertension is etiologically related to any aspect of active military service, to include injury or disease in service, including the Veteran's presumed exposure to tactical herbicides used in Vietnam during the Vietnam Era. As rationale for this opinion the VHA expert cited the Veteran's physical examination findings for blood pressure readings at the time of his separation from service in April 1963, which showed blood pressure readings of 118/64 sitting, 118/64 recumbent, and 120/64 standing; and pulses of 80 sitting, 94 after exercise, 80 recumbent, and 90 after standing for three minutes. Regarding erectile dysfunction, the VHA expert opined that it was possible that the erectile dysfunction is etiologically related to an aspect of active military service, to include injury or disease in service, including the Veteran's presumed exposure to tactical herbicides used in Vietnam during the Vietnam Era. As rationale, the VHA expert cited a conclusion of law from a 2014 Board decision, which the VHA expert attached to his opinion as "Exhibit 2". Analysis VA has granted service connection for several disabilities as related to service or to a service-connected disability including (1) cardiovascular disease and atrial fibrillation; (2) diabetes mellitus type II, as due to exposure to herbicide agents; (3) diabetic peripheral neuropathy of the left upper extremity associated with diabetes mellitus type II; (4) diabetic peripheral neuropathy of right upper extremity associated with diabetes mellitus type II; (5) diabetic peripheral neuropathy of the left lower extremity associated with diabetes mellitus type II; and (6) diabetic peripheral neuropathy of right lower extremity associated with diabetes mellitus type II. Service connection for erectile dysfunction As discussed above, it is the opinion of two private treating physicians that the Veteran's erectile dysfunction is related to his service-connected diabetes mellitus type II. Respectively, they opined that the diabetes "certainly directly effects" existing medical problems including erectile dysfunction; and that the diabetes has contributed to or caused conditions including erectile dysfunction. These opinions are supported by that of the June 2015 VHA expert opinion. Although the VHA expert opined that it is possible that the erectile dysfunction is related to the Veteran's exposure to tactical herbicides in Vietnam, the VHA expert ultimately relied on a medical finding, which was contained in a Board decision of another case that the expert attached and cited, that another veteran's erectile dysfunction was a complication of his diabetes mellitus. Nonetheless, the VHA expert's opinion supports that of the two private treating physicians. Notably, in Diabetic Neuropathies: The Nerve Damage of Diabetes, the National Institute of Diabetes and Digestive and Kidney Diseases noted that diabetic neuropathy is involved in erectile dysfunction. See http://www.niddk.nih.gov/ health-information/health-topics /Diabetes/diabetic-neuropathies-nerve-damage-diabetes/Pages/diabetic-neuropathies-nerve-damage.aspx (Last accessed August 18, 2015). The two VA examiners' opinions against the Veteran's claim of a service connection for erectile dysfunction are based solely on the timing of diagnoses as rationale-relying on the determination that the diagnosis of erectile dysfunction came before that of diabetes mellitus type II. Diabetes mellitus symptoms may not be apparent, and definitive diagnosis requires blood tests. See http://www.niddk.nih.gov/health-information/ health-topics/Diabetes/diagnosis-diabetes-prediabetes/Pages/index.aspx#3 (Last accessed August 18, 2015). Therefore, the timing of a diagnosis of diabetes mellitus can be uncertain and potentially delayed if relying on the Veteran's perceived symptoms. Thus relying on the timing of the diagnosis of the Veteran's erectile dysfunction in relation to that of his diabetes mellitus can be problematic for making an opinion as to etiological relationships between the two diseases. Despite the two VA examiners' opinions, in light of the opinions offered by the private treating physicians and the VHA expert, the evidence is at least in equipoise with respect to the likelihood that the Veteran's diagnosed erectile dysfunction is etiologically related to his service-connected diabetes mellitus type II, as persuasively articulated in their statements. These opinions are generally consistent with each other and consistent with the remainder of the clinical record history for erectile dysfunction. There are no opposing opinions that are as probative, for as discussed above, the two VA examiners' opinions are problematic in their stated rationale. Notably, in Diabetic Neuropathies: The Nerve Damage of Diabetes, the National Institute of Diabetes and Digestive and Kidney Diseases noted that diabetic neuropathy is involved in erectile dysfunction. See http://www.niddk.nih.gov/ health-information/health-topics /Diabetes/diabetic-neuropathies-nerve-damage-diabetes/Pages/diabetic-neuropathies-nerve-damage.aspx (Last accessed August 18, 2015). Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for the diagnosed erectile dysfunction. Service connection for hypertension The Veteran has a diagnosis of a hypertension disorder during the pendency of the appeal. He was diagnosed with hypertension in about 2001. There is no evidence of any hypertension disorder or symptomatic problems during service. Moreover, there is no evidence showing a hypertension disorder manifest to a degree of ten percent or more within one year after discharge. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran served in Vietnam during the applicable period, hypertension is not one of the diseases for which service connection may be presumed due to exposure to herbicide agents under applicable regulatory provisions. See 38 C.F.R. § 3.307(a)(6), 3.309 (e). With respect to the Veteran's lay statements that his hypertension is due to his service-connected diabetes mellitus type II, the Veteran is competent to attest to symptoms of his hypertension and diabetes mellitus type II. However, the Board finds that the Veteran's lay testimony as to onset of hypertension and diabetes mellitus type II, does not provide supportive evidence of probative value for his claim of service connection. The clinical record shows no continuity of hypertension symptoms after service associated with a present hypertension disability; or any temporal correlation between hypertension and diabetes symptoms that is supportive of his claim. The first clinical evidence of any hypertension is not shown until many years after service, and several years prior to the diagnosis of diabetes mellitus, type II. The opinions of the VA examiners and VHA expert were overall that the Veteran's current diagnosis of hypertension is not likely caused by or a result of his active duty service, or related to service-connected disability including his diabetes mellitus type II, for reasons as discussed above. Those reasons included that no hypertension symptoms were shown during service, including at the time of the April 1963 separation examination; and that hypertension began years after service and years before the diagnosis of diabetes mellitus type II. The VHA expert noted that the Veteran had obstructive sleep apnea, a well-recognized cause of secondary hypertension, with onset in 1995, which correlates much more closely with the onset of the Veteran's hypertension than does the onset of his diabetes mellitus type II. These opinions are probative as they are consistent with the medical history recorded on file; and there are no other opinions on this matter that are consistent with the remainder of the medical evidence on file. The opinion of the two private treating physicians, that the Veteran's hypertension is related to his service-connected diabetes mellitus type II, is not consistent with the medical history showing diagnosis of diabetes years later after onset of hypertension. On review of the evidence overall, the Board determines that while the Veteran believes that he has a hypertension disability with an etiology related to his military service to include as related to service-connected disability, he is not shown to be other than a lay person. As a lay person, he has no competence to provide a medical opinion on this medically complex matter concerning the diagnosis and etiology of such condition. The preponderance of the evidence is against the claim for service connection for hypertension; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for erectile dysfunction is granted. Service connection for hypertension is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs