Citation Nr: 1805894	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  11-33 625	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for insomnia, to include as result of herbicide exposure or secondary to diabetes mellitus. 

2. Entitlement to service connection for hypertension, to include as result of herbicide exposure or secondary diabetes mellitus. 

3. Entitlement to service connection for erectile dysfunction, to include as result of herbicide exposure or secondary diabetes mellitus.  

4. Entitlement to special monthly compensation based on loss of use of a creative organ.


REPRESENTATION

Veteran represented by:	Eric A. Gang, Attorney-at-Law


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1967 to May 1969 and February 2003 to May 2003.

This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

These claims were previously remanded by the Board in November 2014 for additional development. That development is complete and jurisdiction has returned to the Board. 

Since the Board's November 2014 remand the Veteran has been granted service connection for his depressive disorder and bilateral upper and lower diabetic peripheral neuropathy. Therefore, these issues are no longer on appeal before the Board. 


FINDINGS OF FACT

1. The Veteran does not have a diagnosis of insomnia. 

2. The Veteran's sleep impairment is encompassed in his service-connected depressive disorder.

3. The Veteran's hypertension was not present in service or within one year of discharge, and is not otherwise related to service or caused or aggravated by diabetes mellitus.

4. Erectile dysfunction was not present during the Veteran's active service or for several years thereafter and the record contains no indication that the Veteran's post-service erectile dysfunction is causally related to his active service, or caused or aggravated by diabetes mellitus.

5. The Veteran's loss of use of a creative organ is not due to a service-connected disability.


CONCLUSIONS OF LAW

1. The criteria for service connection for insomnia are not met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).

3. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

4. The criteria for special monthly compensation based on loss of use of creative organ are not met. 38 U.S.C. §§ 1114(k), 5107 (2012); 38 C.F.R. §§ 3.102, 3.350(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection is also warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). To establish secondary service connection for a disability there must be evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the current disability was either (a) caused or (b) aggravated by the service-connected disability; compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

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 claimant 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. § 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.

IIa. Herbicide Exposure

The Veteran served on active duty in the Republic of Vietnam between January 9, 1962 and May 7, 1975 and he is therefore presumed to have been exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(iii). However, the Board notes that the mere exposure to herbicides alone does not create a permanent disability for which compensation may be granted. Instead, service connection may be granted on a presumptive basis for certain diseases on an exclusive list of disease associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service. 38 C.F.R. § 3.307(a)(6). 

These disease include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin's disease, ischemic heart disease (including acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery, and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemia (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Ischemic heart disease associated with herbicide agent exposure in service for VA presumptive service connection purposes does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke. See 75 Fed. Reg. 53,202 (Aug. 31, 2010).

The Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341 - 46 (1994); see also Notice, 61 Fed. Reg. 41,442-449 (1996).

The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d); Polovick v. Shinseki, 23 Vet. App. 48, 52-53 (2009).

Here, the Veteran's claims do not meet the criteria for service connection under the Agent Orange presumption for any of his disabilities, as none of the disabilities of insomnia, hypertension or erectile dysfunction are a presumed disease under 38 C.F.R. § 3.309(e). Therefore, no further consideration is necessary for these conditions under this presumption regardless of the Veteran's herbicide exposure. 

The Board finds the preponderance of the evidence weighs against the Veteran's claims of entitlement to service connection based on herbicide exposure for any of his disabilities. As such, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 
IIb. Service Connection-Insomnia 

Following a review of the relevant evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for insomnia.

After a review of the Veteran's record, the Board finds that the Veteran does not have a current diagnosis of insomnia under either DSM-IV or DSM-5. Although the Veteran has been prescribed insomnia medications after leaving service, these medications were given based on the Veteran's inability to sleep due to his mental health symptoms and the pain in his legs and feet from his diabetes and service-connected disabilities. Even at his various post-service examinations, both private and VA, the medical professionals discuss the Veteran's sleep impairment as a symptom of his depressive disorder. Therefore, even if given the benefit of the doubt that the Veteran is experiencing sleep impairment, it is already contemplated under the Veteran's 100 percent rating for his service-connected depressive disorder.

In considering all the evidence, the Veteran has not met his evidentiary burden that his claimed insomnia is a separate diagnosed disability. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). As there is no established current disability, there is no need to discuss the additional prongs for a direct service or a potential secondary connection claim as the fundamental requirement for both is a current disability. As there is no diagnosed current disability there can be no entitlement to service connection. 

In conclusion, as the Veteran is not shown by the evidence of record to have a diagnosis of insomnia, the preponderance of the evidence of record weighs against the Veteran's claim of entitlement to service connection for such disability. As such, there is no reasonable doubt to be resolved, and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49. 

IIb. Service Connection-Hypertension

Chronic Disease Presumption

Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. § 3.307 (2017). 

If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2017). 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. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran's claimed disability of hypertension is considered a chronic disability under 38 C.F.R. § 3.307. Although the Veteran has a current disability of hypertension, which was diagnosed in 2008, there is no competent evidence that the hypertension was diagnosed in service or manifested within one year of service. There are also no complaints of symptomology for this condition in the Veteran's service treatment records or within one year of service discharge. The Veteran was given an examination in September 1969, prior to leaving service and hypertension was not shown at that time. In fact, within the claims file are medical examinations from the Veteran's time as a police officer in between his two periods of service and no symptomology involving high blood pressure readings is noted on these records as well. 

Therefore, with no in-service hypertension or elevated blood pressure readings hypertension being manifested within one year of service, as far as diagnosis and symptomology, the Board finds that the Veteran's hypertension cannot be service connected as a chronic disease. 

Direct Service Connection

Additionally, the Veteran's hypertension cannot be connected on a direct basis as well. 

As stated above the Veteran had multiple service treatment records from service and did not complain of any hypertension symptomology or demonstrate elevated blood pressure readings. This is particularly relevant because the Veteran sought medical treatment for other ailments while in service. The Veteran was also provided a separation examination in September 1969 and hypertension was not documented. 

The Board notes the Veteran's statements in regard to his hypertension and how it should be service connected. However, the Veteran himself is not competent to establish the etiology of a complex disease process such as hypertension and therefore his statements that he believes his hypertension is related to service are insufficient to establish a nexus. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Also, the Board notes that although the Veteran has a current diagnosis of hypertension, which was diagnosed around June 2008, this is several years after even his secondary period of service. This evidence tends to establish that the Veteran's disability did not have its onset in service. The passage of many years between service separation and medical documentation of a disability tends to weigh against a finding that a disease or injury had its onset in service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The January 2015 VA medical opinion supports this conclusion by stating that the hypertension was less likely than not incurred in service as the service treatment records and records within one year of both periods of service are silent for hypertension or high blood pressures. 

"It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). The Board also notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The most probative and credible evidence establishes that the Veteran's hypertension is not related to his military service. Therefore, the claim for service connection for hypertension on a direct basis must be denied. 

Secondary Service Connection

The Veteran has also claimed that his diagnosed hypertension is secondary to his already service-connected diabetes mellitus type II. 

The Veteran submitted a private medical report from May 2014 that suggests that his hypertension may be a result of his diabetes mellitus due to the widespread different systems that diabetes mellitus tends to effect. However, the Board finds this opinion to not carry weight, as there was no rationale provided to support the opinion. Additionally, the examiner used speculative language when providing the opinion. For example, he wrote, "With the hypertension, diabetes often occurs with hypertension and there is much overlap in etiology and disease mechanism.  Both can be the result of metabolic syndrome.  Also, diabetes can impair kidney functioning, which can lead to high blood pressure." This is a speculative opinion.  

Following the Board's remand, the Veteran received an additional VA examination in January 2015 for his hypertension. The opinion from this examination stated that based on the examination findings the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's diabetes mellitus as the hypertension diagnosed in 2008 pre-existed the diabetes mellitus diagnosed in 2010. The opinion goes on to state that the diabetes mellitus did not aggravate the hypertension beyond its natural process as well. The Board finds this opinion more probative, as it was made following a full examination of the Veteran and full review of the Veteran's records. 

Therefore, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for hypertension on a secondary basis to his service-connected diabetes mellitus as well. 

Because the preponderance of the evidence is against granting the claim for service connection for hypertension, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IId. Service Connection-Erectile Dysfunction

Direct Service Connection 

As noted by the January 2015 VA examiner, again, the Veteran's service treatment records for both periods of service are silent to any symptoms of erectile dysfunction. As noted by BVA remand in November 2014, the record up until the December 2009 VA examination had no indication of a diagnosis or symptomology of erectile dysfunction. After a full examination in January 2015, it was confirmed that the Veteran does have erectile dysfunction. However, the Veteran himself stated that he was not fully able to "participate" in sexual activity since 2008 and that it got worse in 2013. However, he does not reference the disability starting in service. 

Therefore, the evidence weighs against the Veteran being service connected on a direct service basis to service. 


Secondary Service Connection 

The Veteran's main contention is that his erectile dysfunction is secondary to his service-connected diabetes mellitus. 

In the same private medical opinion mentioned above, it was suggested that the Veteran's erectile dysfunction is systemic from his service-connected diabetes mellitus. However, as mentioned above, a medical rationale is lacking. However, in the January 2015 VA medical opinion, after a full examination, the examiner stated that although the Veteran does have an erectile dysfunction disability, it is less likely than not related to his diabetes mellitus because it predates the Veteran's diabetes mellitus. The same rationale was provided as to why the Veteran's erectile dysfunction had not been aggravated by his diabetes mellitus. 

Therefore, the Board finds that the evidence weighs against the Veteran's claim for erectile dysfunction on a secondary basis to his service-connected diabetes mellitus as well. 

Because the preponderance of the evidence is against granting the claim for service connection for erectile dysfunction, the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

III. Loss of a Creative Organ

Also, the Veteran contends that he has experienced loss of use of a creative organ as a result of his claimed erectile dysfunction.

SMC is a statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. 

Under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a)(1), SMC may be paid for loss of use of a creative organ. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. The General Counsel has provided an opinion that SMC is awarded for either anatomical loss or loss of use of a creative organ. VAOPGCPREC 93-90; VAOPGCPREC 5-89. SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. See 38 U.S.C. § 1114(k) (2012); 38 C.F.R. § 3.350(a). 

The Veteran's January 2015 VA examination confirms that he has erectile dysfunction. However as service connection was denied, service connection for special monthly compensation based on use of loss of a creative organ must also be denied. There is no other evidence or contention to indicate that the Veteran has loss of use of a creative organ that began during active service, is related to any incident of service, or is caused or aggravated by service-connected disability. As a result, the preponderance of the evidence is against the claim and SMC based on loss of use of a creative organ. 

Accordingly, entitlement to SMC based on loss of use of the creative organ is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for insomnia, to include as result of herbicide exposure or secondary to diabetes mellitus, is denied. 

Entitlement to service connection for hypertension, to include as result of herbicide exposure or secondary to diabetes mellitus, is denied. 

Entitlement to service connection for erectile dysfunction, to include as result of herbicide exposure or secondary to diabetes mellitus, is denied.  


Entitlement to special monthly compensation based on loss of use of a creative organ is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs