Citation Nr: 20002129 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 19-11 367 DATE: January 9, 2020 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes is granted. Entitlement to special monthly compensation based on loss of use of a creative organ is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II (diabetes) is remanded. Entitlement to service connection for a left knee condition, to include as secondary to service-connected diabetes is remanded. The petition to reopen the previously denied claim of entitlement to service connection for a low back condition is remanded. Entitlement to service connection for a heart condition, to include as secondary to herbicide agent exposure and/or service-connected diabetes is remanded. Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and/or service-connected diabetes is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, erectile dysfunction is related to his service-connected diabetes. 2. The evidence of record is at least in equipoise as to whether the Veteran has lost the use of a creative organ due to erectile dysfunction. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction are met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.102, 3.303, 3.310. 2. The criteria for entitlement to SMC for loss of use of a creative organ have been met. 38 U.S.C. § 1114; 38 C.F.R. § 3.102, 3.350(a)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1965 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). In a January 2019 correspondence, the Veteran’s representative raised the issue of clear and unmistakable error (CUE) in a March 1971 rating decision that denied service connection for a low back condition. Absent an adjudication of such by the AOJ in the first instance, the Board does not have jurisdiction over that matter. See generally Jarrell v. Nicholson, 20 Vet. App. 326, 330-32 (2006) (en banc) (holding that the Board lacks jurisdiction over an issue not first presented to and adjudicated by the RO). However, the Veteran remains free to file a motion with the AOJ asserting CUE. 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes. The Veteran contends that his erectile dysfunction is due to his service-connected diabetes. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds service connection is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence of record, the Veteran underwent a VA examination for his erectile dysfunction in June 2016. At that time, the examiner noted a diagnosis of erectile dysfunction. A review of the examination report shows that the examiner reported that the Veteran’s erectile dysfunction was due to multiple factors, to include the Veteran’s diabetes. Although diabetes was not reported as the sole contributing factor, such is not required in order to find an etiological relationship. Rather, a nexus will be established so long as the Veteran’s diabetes contributed in some way to the development of his current erectile dysfunction. See Cohen v. Brown, 10 Vet. App. 128, 141 (1997) (discussing the “eggshell plaintiff rule” in the context of VA claims). The Board notes that the examiner, in her June 2016 etiology opinion, opined that it was less likely than not that the Veteran’s erectile dysfunction was proximately due to or the result of his service-connected condition. However, the RO requested an opinion regarding direct service connection, not secondary. Additionally, the examiner’s rationale focuses solely on direct service connection and only discusses why the Veteran’s erectile dysfunction is not related to his military service. It does not in any way discuss whether a relationship exists between the Veteran’s erectile dysfunction and service-connected diabetes. Thus, the Board finds that the examiner’s response to the RO’s request with a negative secondary opinion was a typographical error and that the examiner meant to opine that the claimed condition was less likely than not directly related to the Veteran’s service. The Board also notes that during the Veteran’s May 2016 VA examination for his diabetes, the examiner found that the Veteran did not have any complications due to his diabetes. However, this examination was not conducted by the June 2016 examiner who specifically evaluated the nature and etiology of the Veteran’s erectile dysfunction. In light of the foregoing, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s erectile dysfunction is due to his diabetes. Accordingly, the Board will resolve all reasonable doubt in favor of the Veteran and find that service connection for erectile dysfunction is warranted on secondary theory of entitlement. 2. Entitlement to special monthly compensation based on loss of use of a creative organ. 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); 38 C.F.R. § 3.350(a). The statute is interpreted as including erectile dysfunction as loss of use of a creative organ. The evidence of record is set forth above in the discussion of service connection for erectile dysfunction. The Board finds that after affording the Veteran the benefit of the doubt, he has lost the use of a creative organ secondary to his erectile dysfunction, now a service-connected disability. Id. REASONS FOR REMAND Whether new and material evidence has been submitted to reopen the previously denied claim for a back condition, entitlement to an initial rating in excess of 20 percent for diabetes, and entitlement to service connection for hypertension, a heart condition, and a left knee condition. The Board finds that all remaining claims on appeal require further development prior to adjudication. First, there may be outstanding, relevant private treatment records. The evidence of record indicates that the Veteran receives treatment from a private provider(s) for his diabetes, hypertension, and possibly a heart condition. VA treatment records show that the Veteran is followed by his private primary care physician (PCP), Dr. P.G., for diabetic care, to include during the relevant appeal period. See November 2015 and February 2016 VA treatment records. VA treatment records also show that the Veteran may have sought treatment with his private PCP as well as a private cardiologist, Dr. P, for a heart condition. See February 2009 VA treatment record (noting that the Veteran’s private PCP, Dr. P.G., started the Veteran on plavix and that the Veteran saw a private cardiologist, Dr. P.). VA treatment records also indicate that the Veteran has sought treatment with a private provider for his hypertension. See VA treatment records (noting lisinopril as a non-VA medication). However, no records from any private providere are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. With regards to the Veteran’s left knee and back, the Board notes that it is unclear whether any oustanding private treatment records would be relevant to these claims as it is not clear whether the Veteran has in fact sought treatment with a private provider for these reported conditions. The Veteran contends that he has a current left knee and back condition. However, VA treatment records are generally silent for any complaints, treatment, or diagnoses related to the left knee or back, except for a November 2014 VA treatment record that notes trauma to the left knee. In light of the evidence of record that indicates the Veteran seeks most of his care from a private provider(s), the Board finds that it is reasonable to assume that he also has sought treatment from a private provider for his left knee and back. Thus, on remand, the Veteran should be afforded an opportunity to identify any private providers that have treated him for left knee and/or back symptomatology. The evidence also indicates that there may be outstanding in-service hospital records pertaining to the Veteran’s back. On his original 1970 claim for a back condition, the Veteran reported that he was treated at Fort Brooke Military Hospital in July or August 1965. Although the Veteran’s service treatment records are of record, hospitalization records are sometimes kept separately, and specific request for in-service hospital records must be made. A remand is required to allow VA to request these potentially relevant records. Furthermore, with regards to the Veteran’s claim for hypertension, the Veteran underwent a VA examination in May 2016. The examiner opined that the Veteran’s hypertension was less likely than not caused by or a result of the Veteran’s military service because there was no evidence in the service records. The Board finds this opinion is inadequate because the examiner relied solely on the absence of evidence in his rationale. Moreover, the Veteran’s exposure to herbicide agents has been conceded. Although the Veteran has not expressly contended that his hypertension is due to his presumed herbicide agent exposure, the Veterans and Agent Orange: Update 11 (2018), the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to Agent Orange to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. Accordingly, on remand, the Board finds that a new opinion addressing direct service connection should be obtained, and it should consider the Veteran’s presumed exposure to herbicide agents. Additionally, the Veteran also has contended that his hypertension is secondary to his service-connected diabetes. Thus, an opinion addressing whether the Veteran’s diabetes caused or aggravated his hypertension also should be obtained. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Fort Brooke Military Hospital from July to August 1965. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers that have treated him for diabetes, hypertension, a heart condition, a left knee condition, and/or a back condition, to include his private PCP, Dr. P.G., and cardiologist, Dr. P. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected diabetes mellitus. The claims file should be reviewed, the Veteran’s symptoms should be discussed, and all pertinent findings should be recorded. 4. Obtain a VA medical opinion regarding the etiology of the Veteran’s hypertension from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension had its onset in, or is otherwise related to, active service to include his presumed exposure to herbicide agents. In so opining, the examiner should consider the Veterans and Agent Orange: Update 11 (2018), where the National Academies of Sciences, Engineering and Medicine (NAS), upgraded hypertension from its previous classification in the category of “limited or suggestive” evidence of an association to the category of “sufficient” evidence of an association. According to NAS, “[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association” between hypertension and herbicide exposure. (b) Whether it is at least as likely as not that the Veteran’s hypertension was caused or aggravated by his service-connected diabetes. If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the hypertension prior to aggravation by the service-connected diabetes. (Continued on the next page)   A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.