Citation Nr: 21029180 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-29 115 DATE: May 12, 2021 ORDER Service connection for erectile dysfunction secondary to diabetes mellitus is granted. REMANDED The issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities are remanded. FINDING OF FACT The Veteran's currently diagnosed erectile dysfunction is due, at least in part, to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction secondary to service-connected diabetes mellitus have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to January 1970. This matter is before the Board following his appeal of a September 2012 rating decision. In January 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Service Connection for Erectile Dysfunction The Veteran contends that his erectile dysfunction, diagnosed sometime in 2006, was caused or is aggravated by his service-connected diabetes mellitus. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. In this case, the Board finds that there is a balance of evidence weighing in favor and against the Veteran's claim. The record shows that the Veteran was diagnosed with diabetes mellitus sometime around 2002 and began to experience erectile dysfunction (ED) sometime around October 2006. At that time, it was noted that the Veteran's ED was probably secondary to smoking, hypertension, multiple sclerosis, and diabetes mellitus. Thereafter, in September 2007, the Veteran was referred for an evaluation for erectile dysfunction during which a VA provider observed that the Veteran's ED problem "could be compounded by the presence of type 2 diabetes of 4-5 years duration," as well as multiple sclerosis, which was noted to be stable. In November 2007, the Veteran reported that his inability to obtain an erection was noted more profoundly when his blood sugars were elevated. VA active problem lists thereafter show the diagnosis listed as male erectile disorder due to a general medical condition Of particular note, in October 2008 and February 2011, VA providers respectively opined that the Veteran's ED was "most likely" or "more likely than not" related to his diabetes mellitus, particularly in light of evidence showing that the Veteran's multiple sclerosis was stable. Similarly, in a May 2013 Disability Benefits Questionnaire, a treating provider opined that the Veteran's ED was at least as likely as not due to diabetes mellitus. And, while they did not provide positive opinions, it is noteworthy that VA examiners in September 2012 and November 2015 also included diabetes mellitus in their combined list of etiologies for the Veteran's ED. The foregoing evidence supports that the Veteran's diabetes mellitus, at least in part, has caused or aggravated his ED. As noted, there is also evidence weighing against the Veteran's claim, including a negative March 2007 VA opinion, which found that the Veteran's ED was less likely as not caused by diabetes mellitus and, instead, attributed the Veteran's ED to his multiple sclerosis. Nevertheless, because the examiner failed to discuss aggravation, and because the weight of the remainder of the evidence supports that the Veteran's diabetes mellitus, at least in some part, contributes to his erectile dysfunction, the Board finds the March 2007 opinion less probative. At the very least, the Board finds that the evidence is at least in relative equipoise and accords more probative weight to the positive opinions as they are consistent with each other and, in the case of the February 2011 VA provider's opinion, supported by rationale. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board finds that the fact that there may be other factors contributing to the Veteran's erectile dysfunction does not negate the probative evidence of record that his service-connected diabetes mellitus also contributes. Accordingly, the benefit of the doubt doctrine is for application and service connection is warranted for erectile dysfunction as secondary to diabetes mellitus.] REASONS FOR REMAND The issues of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities are remanded. The Board finds that the Veteran's peripheral neuropathy service connection claims require remand for a new examination in light of evidence associated with the record following a November 2015 VA examination pursuant to which an examiner found that the Veteran did not have diabetic peripheral neuropathy and that his neurological symptoms were more likely related to his nonservice-connected multiple sclerosis. Specifically, following that examination, clinical evidence showed the Veteran's VA active problems list to include diabetic neuropathies, assessments of diabetes mellitus with a history of unconfirmed peripheral neuropathy, and the Veteran's report that his right leg did not feel the same as the left leg, suggesting perhaps different conditions. See August 2016 and January 2017 VA Treatment Notes. The Veteran also testified in January 2021 that he experienced neurologic symptoms prior to being diagnosed with multiple sclerosis. The Board also notes that the November 2015 VA opinion did not address aggravation, or prior evidence suggesting that at least some of the Veteran's neurological symptoms may be related to diabetes mellitus in light of evidence showing the Veteran's multiple sclerosis to be stable. See, e.g., February 2011 VA Spinal Cord Injury Note (noting increased symptoms to be more likely than not related to diabetes rather than multiple sclerosis given the evidence that multiple sclerosis is stable based on repeat MRI of brain and spinal cord). Additionally, the Board finds the November 2015 opinion somewhat internally inconsistent, as the examiner generally opined that it was less likely as not that the Veteran's neurological complaints were related to diabetes mellitus, but also specifically identified the Veteran's neurologic symptoms and sensorimotor deficits in the right upper and right lower extremities (without mention of the left) as being attributable to multiple sclerosis and not diabetes mellitus. Given the foregoing, the Board finds that a new examination and opinion are necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). On remand, updated treatment records should be obtained. The matters are REMANDED for the following action: 1. With any assistance required of the Veteran, obtain updated and outstanding relevant treatment records (both VA and private, if any). 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of any neurological disability affecting his bilateral upper and lower extremities. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted and the results reported, to include EMG or NCS testing. If EMG or NCS testing is deemed not appropriate, the examiner should specifically state why such testing is not necessary. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: (a) Diagnose all neurological disabilities affecting the bilateral upper and lower extremities. Specifically, state whether the Veteran has neurologic symptoms and/or impairment attributable to diabetes mellitus that is separate from or in addition to multiple sclerosis, with consideration of his January 2017 report that his right and left legs felt different. If a diagnosis of diabetic peripheral neuropathy is not warranted, please explain why not. (b) For any neurologic disability found, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that such condition was caused by service-connected diabetes mellitus. (c) For any neurologic disability of the upper and/or lower extremities that was not caused by diabetes mellitus, state whether it is at least as likely as not (i.e. a 50 percent of greater probability) that the condition underwent an incremental increase (aggravated), regardless of permanence, by service-connected diabetes mellitus. In providing the foregoing opinions, please address the Veteran's January 2021 testimony that he experienced neurologic symptoms prior to be diagnosed with multiple sclerosis, and the February 2011 VA Spinal Cord Injury treatment note indicating that the Veteran's increased symptoms were more likely than not related to diabetes rather than multiple sclerosis given the evidence that multiple sclerosis is stable based on repeat MRI of brain and spinal cord. (d) The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. (e) Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.