Citation Nr: 1806896 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-13 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus or as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes mellitus or as due to herbicide exposure. 3. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus or as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Gabay, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1965 to September 1967, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran was scheduled to testify at a videoconference hearing before a Veterans Law Judge (VLJ) in regards to this matter in July 2017. However, the Veteran withdrew his hearing request via correspondence received that same day. As such, this matter is properly before the undersigned. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's erectile dysfunction is etiologically related to his active duty service. 2. Resolving all doubt in the Veteran's favor, the Veteran's peripheral neuropathy of the bilateral lower extremities is etiologically related to his active duty service. 3. Resolving all doubt in the Veteran's favor, the Veteran's hypertension is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, to include as secondary to diabetes mellitus or as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310(a), (b) (2017). 2. The criteria for service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to diabetes mellitus or as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310(a), (b) (2017). 3. The criteria for service connection for hypertension to include as secondary to diabetes mellitus or as due to herbicide exposure, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.310(a), (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Neither the Veteran nor his 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). Merits of the Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See, e.g., Hickson v. West, 12 Vet. App. 247 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show the following: (1) that a current disability exists and (2) that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; 38 C.F.R. § 3.310(b) (2017). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In so doing, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. Erectile Dysfunction The Veteran asserts that he has a current diagnosis of erectile dysfunction that is etiologically related to service. The Veteran is currently service-connected for diabetes mellitus, and he alleges that his erectile dysfunction is secondarily related to his diabetes mellitus. In an October 2012 statement, the Veteran's private physician, Dr. Kidder, indicated that the Veteran was exposed to Agent Orange during service, and that as a result of that exposure, he has developed erectile dysfunction. He opined that the Veteran's erectile dysfunction is directly tied to his service-connected diabetic condition. The Veteran underwent a VA examination in February 2014, during which the examiner noted a diagnosis of erectile dysfunction from 15 years prior. The examiner listed hypogonadism as the direct cause of the Veteran's erectile dysfunction. Upon examination, the Veteran's testicles were found to be one-third or less of the normal size and considerably softer than normal. The examiner concluded that the Veteran's erectile dysfunction was at least as likely as not permanently aggravated by his diabetes mellitus. He stated the Veteran's baseline to be an inability to maintain an erection prior to the diagnosis of diabetes mellitus due to his hypogonadism. The Board finds the opinions of Dr. Kidder and of the February 2014 VA examiner to be highly probative. The competent and credible medical evidence shows that Veteran has a current diagnosis of erectile dysfunction, and that he is service-connected for diabetes mellitus. Further, both Dr. Kidder and the February 2014 VA examiner concluded that the Veteran's erectile dysfunction was etiologically related to service. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds a grant of service connection for erectile dysfunction is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. B. Peripheral Neuropathy The Veteran asserts that his peripheral neuropathy is also secondarily related to his service-connected diabetes mellitus. A November 2011 VA treatment record notes that the Veteran was seen for bilateral foot pain. The pain went into the Veteran's toes and ankles. The nurse practitioner who treated the Veteran noted that the Veteran was diagnosed with diabetes mellitus within the past year. She ultimately associated the foot pain with the Veteran's diabetes mellitus. The Veteran underwent a VA examination in June 2012, during which the examiner indicated that the Veteran was not symptomatic of peripheral neuropathy. Rather, the examiner stated that the Veteran described symptoms of restless leg syndrome, specifically, frequent leg movement during the night. The examiner noted that the Veteran did not have trophic changes related to peripheral neuropathy. He concluded that the Veteran did not have a diagnosis of peripheral neuropathy. In an October 2012 statement, the Veteran's private physician, Dr. Kidder, indicated that the Veteran was exposed to Agent Orange during service, which led him to develop his service-connected diabetes mellitus. Dr. Kidder opined that the Veteran's diabetes mellitus led to neuropathic changes in his hands and feet. Thus, Dr. Kidder concluded that the Veteran had a current diagnosis of peripheral neuropathy that was secondarily related to his diabetes mellitus. The Veteran underwent a second VA examination in February 2014, during which the Veteran described tingling in the ball of his left foot. He also noted mild pain in his right lower extremity. The examiner noted trophic changes related to peripheral neuropathy in the form of hair loss on both shins. However, the examiner stated that he could not find any changes related to diabetic peripheral neuropathy, and therefore, concluded that the Veteran's peripheral neuropathy was unrelated to his service-connected diabetes mellitus. The medical opinions of record are contradictory on the issue of a current diagnosis of diabetic peripheral neuropathy. Yet, while the opinions of the VA examiners are competent and probative, they are met in equipoise by the competent and credible medical opinion of Dr. Kidder, who has personally treated the Veteran for diabetic peripheral neuropathy. See Gilbert, 1 Vet. App. at 55. Thus, as the Veteran has been diagnosed with diabetic peripheral neuropathy, as the Veteran is already service-connected for diabetes mellitus, and as the Veteran has received a competent and probative medical opinion that his currently diagnosed peripheral neuropathy is secondarily related to his diabetes mellitus, the Board finds that the evidence is at least in equipoise as to whether the Veteran's peripheral neuropathy is caused by or aggravated by his service-connected diabetes mellitus. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds a grant of service connection for diabetic peripheral neuropathy is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. C. Hypertension Likewise, the Veteran asserts that he also has a current diagnosis of hypertension that is secondarily related to his service-connected diabetes mellitus. In an October 2012 statement, the Veteran's private physician, Dr. Kidder, indicated that the Veteran was exposed to Agent Orange during service. He opined that the Veteran developed hypertension due to microvascular damage from the kidney, which was caused by his diabetic condition. He therefore concluded that the Veteran's hypertension is directly tied to his service-connected diabetes. The Veteran underwent a VA examination in February 2014, during which the examiner noted a diagnosis of hypertension. The Veteran was found to have elevated BP levels upon examination. Blood pressure readings were 140/85, 142/82, and 136/79. The examiner noted that the Veteran did not have evidence of renal dysfunction and was not currently taking any medication for hypertension. He concluded that the Veteran's hypertension was not proximate to or permanently aggravated by his diabetes mellitus because there were no medical records to support the assertion. The medical opinions of record are contradictory on the issue of whether the Veteran's hypertension is related to his diabetes mellitus. However, in this case, the Board gives more weight to Dr. Kidder's opinion, who based his opinion on his time as the Veteran's personal physician. The Board finds Dr. Kidder's opinion highly probative in this regard. On the other hand, the Board finds the February 2014 VA examiner's opinion to be inadequate. Specifically, the examiner based his opinion on the absence of medical records relating hypertension to service. The Court of Appeals for Veterans Claims (Court) stated when addressing the adequacy of a VA opinion that, "the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the [Veteran's] current disability and his military service." See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Accordingly, the Board finds that the February 2014 VA opinion, with regard to the Veteran's claim for hypertension, is inadequate for evaluation purposes. As such, in reliance of the competent and probative medical opinion of Dr. Kidder, the Board finds that the Veteran has a current diagnosis of hypertension that is secondarily related to his service-connected diabetes mellitus. In this regard, the Board finds that the evidence is at least in equipoise as to whether the Veteran's hypertension is caused by or aggravated by his service-connected diabetes mellitus. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds a grant of service connection for hypertension is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Service connection for erectile dysfunction, to include as secondary to diabetes mellitus or as due to herbicide exposure, is granted. Service connection for peripheral neuropathy of the lower extremities, to include as secondary to diabetes mellitus or as due to herbicide exposure, is granted. Service connection for hypertension, to include as secondary to diabetes mellitus or as due to herbicide exposure, is granted. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs