Citation Nr: 18144122 Decision Date: 10/25/18 Archive Date: 10/23/18 DOCKET NO. 15-01 054 DATE: October 25, 2018 ORDER The appeal on the issue of entitlement to an earlier effective date for diabetes mellitus type II, associated with herbicide exposure, has been withdrawn and is dismissed. Entitlement to service connection for erectile dysfunction is denied. FINDINGS OF FACT 1. At his July 2018 hearing, prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal on the issue of entitlement to an earlier effective date for his diabetes mellitus type II. 2. The greater weight of evidence shows the Veteran’s erectile dysfunction is not due to his diabetes. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for diabetes mellitus type II, associated with herbicide exposure, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in July 2018. A transcript of the hearing has been associated with the file. 1. Diabetes During the July 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to an earlier effective date for diabetes mellitus type II. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that appeal. In addition, the VLJ discussed the consequences of withdrawing an appeal, and the Veteran expressed that he fully understood those consequences. See Hearing Transcript at 3. Service Connection 2. Erectile Dysfunction Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran contends that his erectile dysfunction is due to his diabetes. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of a service-connected disability. The Board concludes that, while the Veteran has a current diagnosis of erectile dysfunction, the preponderance of the evidence is against finding that the Veteran’s erectile dysfunction is proximately due to or the result of a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The December 2014 private examiner opined that the Veteran’s erectile dysfunction is as likely as not due to his service-connected diabetes. However, this conclusion is not borne out by the evidence of record. The Veteran was first diagnosed with diabetes in July 2007. See December 2014 examination. Further, in a June 2006 patient note, the Veteran's physician, TG, stated that the Veteran did not have diabetes. At this time, the Veteran was diagnosed with a glucose intolerance. The Veteran stated at his July 2018 videoconference hearing that he had diabetes symptoms dating back to 2004. However, the Veteran's erectile dysfunction predates any diagnosis or perceived symptoms of diabetes. In a December 2003 note, TG stated that the Veteran wished to try Levitra as he had equivocal results with Viagra. The Veteran's medical records show that months before experiencing any symptoms and years before being diagnosed with diabetes, the Veteran had already attempted at least one treatment for his erectile dysfunction and was attempting another. As the Veteran's erectile dysfunction predates his diabetes and the symptoms thereof, and given that no evidence suggests diabetes has aggravated the pre-existing erectile dysfunction, service connection on a secondary basis is not warranted. Service connection may also be granted on a direct basis, but the preponderance of the evidence is also against finding that the Veteran’s erectile dysfunction had its onset in service. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran's erectile dysfunction was not diagnosed in service or for over 30 years thereafter. No probative evidence suggests otherwise, or that an in-service injury or a disease shown in service produced erectile dysfunction. As such, service connection on a direct basis is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel