Citation Nr: 0315894 Decision Date: 07/14/03 Archive Date: 07/22/03 DOCKET NO. 93-10 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for loss of use of a creative organ due to VA prescribed medication for non-service connected disability, or alternatively, entitlement to service connection for loss of use of a creative organ as secondary to VA prescribed medication for service connected disability. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for disability of the skin due to VA prescribed medication for non-service connected disability, or alternatively, entitlement to service connection for disability of the skin as secondary to VA prescribed medication for service connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran had active service from July 1970 to October 1972. This appeal comes before the Board of Veterans Appeals (Board) on appeal from a July 1997 rating decision by the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO originally denied claims of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for a skin disorder resulting from medication prescribed by VA and entitlement to service connection for loss of use of a creative organ secondary to a skin disorder. At that time, the veteran was not in receipt of an award of service connection for a skin disorder. The Board remanded these claims in January 1995 and December 1998. As noted by the Board in December 1998, the veteran's allegations of record at that time essentially indicated that he was seeking compensation under 38 U.S.C.A. § 1151 for loss of use of a creative organ and a skin disability resulting from medication prescribed by VA for non-service connected disability. In a Written Brief Presentation dated October 2002, the veteran's representative presented a new theory that the veteran's claimed disabilities stemmed from VA prescribed medication for his service connected mental disorder. In November 2002, the Board notified the veteran that the Board would assume jurisdiction over the new theory of entitlement. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) (VA must consider all theories of entitlement for service connection for the same underlying disorder as a single 'claim'); Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new theory of etiology regarding the same underlying disorder does not result in a "new" claim for adjudication purposes). The Board has rephrased the issues listed on the title page to reflect all theories of entitlement raised by the veteran. FINDINGS OF FACT 1. There is no competent evidence of record that the veteran's claimed impotence disorder was caused and/or aggravated by his use of VA prescribed medication for his service connected and non-service connected disabilities. 2. There is no competent evidence of record that the veteran's skin disorders were caused and/or aggravated by his use of VA prescribed medication for his service connected and non-service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151 and/or 38 C.F.R. § 3.310, for impotence caused or aggravated by VA prescribed medication have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1997); 38 C.F.R. § 3.310 (2002). 2. The criteria for entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151 and/or 38 C.F.R. § 3.310, for a skin disorder caused or aggravated by VA prescribed medication has not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1997); 38 C.F.R. § 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to assist and provide notice As an initial matter, the Board notes that the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) became effective during the pendency of this appeal. Among other things, this law requires VA to notify a claimant of the information and evidence necessary to substantiate a claim and includes other notice and duty to assist provisions. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107 (West 2002). VA has enacted regulations to implement the provisions of the VCAA. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2002). The RO has reviewed both claims under the VCAA provisions. The Court has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. By means of a Statement of the Case (SOC) and Supplemental Statements of the Case (SSOC), the RO has notified the veteran of the Reasons and Bases for denying his claims, and the evidence obtained and reviewed in arriving at its decisions. By letter dated March 14, 2002, the RO provided the veteran notice of the section 5103 requirements as well as notice that he needed to submit competent medical opinion in support of his claims. Following review of the claims folder, the Board wrote to the veteran on November 20, 2002 advising him of the claims on appeal, the applicable standards of review, the evidence obtained by VA in developing his claims, and the additional evidence required to substantiate his claims. At that time, the Board advised the veteran of the information required for VA to assist him in developing his claims, and that he held the ultimate responsibility for providing certain evidence deemed necessary to substantiate the claims. On this record, the Board finds that the provisions of 38 U.S.C.A. § 5103 have been satisfied. The provisions of 38 U.S.C.A. § 5103A require VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. Specifically, VA has an obligation to make continuing efforts to obtain records in the possession of a Federal department or agency until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002). In this case, VA has obtained the veteran's service medical records, his VA clinical records, and documents pertaining to his claim for disability benefits from the Social Security Administration (SSA). The veteran has not referenced any additional evidence and/or information in the possession of a federal agency. The veteran has not identified any pertinent records in the possession of a private provider of treatment and, by statement dated August 5, 2002, he indicated that all evidence relevant to his claims on appeal have been submitted. The Board, therefore, finds that the provisions of 38 U.S.C.A. § 5103A(b) have been satisfied. The provisions of 38 U.S.C.A. § 5103A(d) require VA to obtain medical examination or opinion if necessary to make a decision on a claim. As addressed in more detail below, the Board finds that there is no competent evidence of record suggesting that the veteran manifests an impotence and/or skin disability caused and/or aggravated by VA prescribed medication for service connected and/or non-service connected disability. The veteran must make some showing of entitlement to VA benefits before VA is obligated to provide medical examination or opinion under 38 U.S.C.A. § 5103(d). See Wells v. Principi, 326 F. 3d 1381, 1384 (Fed. Cir. 2003) (VA has no obligation to provide medical opinion pursuant to 38 U.S.C.A. § 5103A(d) absent competent evidence that claimant's disability or symptoms are associated with service). On this record, the Board finds that there is sufficient evidence of record to make a decision on the claims, that the notice and duty to assist provisions of the VCAA have been satisfied, and that no reasonable possibility exists that any further assistance would aid the veteran in substantiating his claims. II. Factual summary The veteran had active service from July 1970 to October 1972. His service medical records are negative for treatment or diagnosis for impotence and/or a chronic skin disorder. He was treated for paranoid schizophrenia with prescriptions of Navane and Artane. Post-service, he first presented to a VA clinic in November 1989 with complaint of itching all over his body for 4-5 months in duration. At that time, he was noted to have diffuse pruritis nodules over a significant amount of his body. He was given an initial diagnosis of diffuse dermatitis and "? Eczematous." At that time, he was given a prescription of Hydroxyzine. A dermatology consultation the next month found "No obvious etiology" for the skin disorder, but one assessment included probable urticaria which was questionably "diet induced." In February 1990, he appears to have been given an assessment of allergic dermatitis. Beginning in March 1990, he began carrying a diagnosis of "dermatitis herpetiformis." He was also given diagnoses of generalized pruritis and lichen planus. In January 1991, he was given an assessment of neurogenic excoriation of "? etiology." A subsequent punch biopsy pathological report indicated a diagnosis of "chronic dermatitis (lichen simplex chronicus)." Also in January 1991, he underwent a consultation for complaint of a three- week history of impotence for which he was prescribed Nicacid (NA). In March 1992, the veteran filed claims for service connection for a nervous condition and a skin disorder, described as a "rash," which began in service. His subsequent VA clinical records include his April 1992 request for a urology consultation for complaint of impotence, otherwise described as erectile dysfunction, at which time he also complained of a hernia problem which interfered with his sex life. On VA mental disorder examination in June 1992, he reported three post-service hospitalizations for his psychiatric disorder, to include his last hospitalization in 1978 after which he stopped taking his medications. He also reported a "skin rash that started in 1989." At that time, he was given a diagnostic impression of chronic, severe paranoid type schizophrenic disorder. He failed to show for his VA skin examination. By means of a rating decision dated July 1992, the RO granted service connection for schizophrenic disorder, and denied service connection for the claimed skin disorder. Thereafter, the veteran's VA clinical records show his September 1992 request for psychiatric treatment. At that time, the veteran indicated that he had "not been taking psychiatric medication from 1980." Thereafter, he was treated for schizophrenia with prescriptions of Mellaril and Elavil. In August 1995, he was given an assessment which included possible acneform rash. In October 1995, he claimed a worsening of skin symptoms after being given an unknown injection in 1991. A punch biopsy pathology report in October 1995 indicated a diagnosis of chronic, active junction-reticular dermatitis with focal psoriasiform and lichen planus-like features. It was noted that his overall picture was compatible with a neurodermatitic reaction (including atopic dermatitis). In July 1996, he was given an assessment of non-specific allergic dermatitis. Overall, his skin disorders have been treated with various prescriptions, to include Atarax, Kenalog injections, Cyclocort, Cephalexin, Tenovate Ointment, Hydroxynan, Dapsone, Dyphenydramine and Tetracycline. VA skin examination in October 2000 indicated an impression of chronic atopic dermatitis and neurodermatitis. III. Applicable law and regulation Compensation is payable for a disability or disease which is proximately due to or the result of a service connected disease or injury. See also 38 C.F.R. § 3.310(a) (2002). The Court of Appeals for Veterans Claims has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. Compensation may also be payable for disease or injury which is proximately due to VA treatment under the provisions of 38 U.S.C.A. § 1151. The current provisions of 38 U.S.C.A. § 1151, which require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA, only apply to claims filed on or after October 1, 1997. VAOPGCPREC 01- 99 (Feb. 16, 1999). See generally Brown v. Gardner, 513 U.S. 115 (1994). The veteran's claim was filed prior to October 1, 1997, and is governed by the former provisions of 38 U.S.C.A. § 1151 which, in pertinent part, provided that: "Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, ... and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability ..., disability or death compensation... shall be awarded in the same manner as if such disability, aggravation, or death were service- connected." The enabling regulation in effect prior to October 1, 1997, 38 C.F.R. § 3.358, provided, in pertinent part, that: "Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran ... 'Necessary consequences' are those which are intended to result from, or where intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered." To prevail, it was necessary to show that any additional disability, or aggravation of a disease or injury, was actually the result of VA treatment and not merely coincidental therewith. The Supreme Court of the United States interpreted the above- mentioned provisions as requiring proof of a causal connection between VA medical treatment and additional disability. Gardner, 115 S.Ct. at 556 n3 ("[i]t would be unreasonable ... to believe that Congress intended to compensate veterans for the necessary consequences of treatment to which they consented (i.e., compensating a veteran who consents to the amputation of a gangrenous limb for the loss of limb)." The veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. VA has defined competency of evidence, pursuant to 38 C.F.R. § 3.159. as follows: "(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." IV. Compensation for loss of use of a creative organ The veteran alleges that his VA prescribed medication for his skin disorder has caused a permanent impotence disorder. During his hearing before the RO in January 1998, he testified that a VA dermatologist advised him that a temporary impotence problem could be a side-effect of one of the medications being prescribed. He reports the onset of impotence following being prescribed the unnamed VA medication, and having the dermatologist refer him to an urologist for his impotence problem. He has discontinued use of the medication which he believes caused his impotence, but the problem has persisted despite several attempts at treatment. The veteran's representative recently alleged that the veteran's impotence stems from VA prescribed medications for his service connected psychiatric disability. The evidence of record first reflects the veteran's complaint of impotence in January 1991 at which time he was given prescriptive treatment. Thereafter, he reports continued impotence problems. There is no competent evidence of record, however, that suggests that the veteran's impotence was caused and/or aggravated by his use of VA prescribed medication for his non-service connected skin disability. Similarly, there is no competent evidence of record that suggests that the veteran's impotence was caused and/or aggravated by his use of VA prescribed medication for his service connected psychiatric disability. To the contrary, the evidence reveals treatment for impotence prior to being prescribed Mellaril and Elavil by VA in September 1992. The evidence also reflects the veteran's denials of taking medications for his service connected psychiatric disability from the 1980's to 1992. The Board, therefore, must find that there is no competent evidence of record that the veteran's claimed impotence disorder was caused and/or aggravated by his use of VA prescribed medication for his service connected and non-service connected disabilities. The claims for compensation under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.310 are, therefore, denied. In so holding, the Board has considered the veteran's opinion that his impotence results from VA prescribed medications. However, the veteran's own self-diagnosis and theory of causation holds no probative value in this case. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. §3.159(a) (2002). It would be impermissible for the Board to find in favor of the veteran in the absence of competent medical opinion supporting his claim of additional disability. See Sanden v. Derwinski, 2 Vet. App. 97 (1992) (a medical basis must be identified at arriving at a conclusion which is contrary to one expressed by a trained medical professional). The benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002). V. Compensation for skin disability The veteran also alleges that VA prescribed medication for a minor skin disorder has aggravated the skin disorder and/or caused additional skin disorders. When the veteran first presented for VA treatment in November 1989, he complained of a 4-5 month history of itching all over his body for 4-5 months, and was noted to have diffuse pruritis nodules over a significant amount of his body. He was given an initial diagnosis of diffuse dermatitis and "? Eczematous." There is no competent evidence of record that suggests that the veteran's initial skin disorder was aggravated by VA prescribed medications for his skin and/or that his subsequently diagnosed skin disorders were caused or aggravated by VA prescribed medications for his skin. Furthermore, there is no competent evidence of record that suggests that the veteran's skin disorders were caused and/or aggravated by his use of VA prescribed medication for his service connected psychiatric disability. Rather, the evidence reveals treatment for an extensive skin disorder several years prior to being prescribed Mellaril and Elavil by VA in September 1992. The only evidence of record suggesting such a causal relationship consists of the opinions voiced by the veteran and his representative which hold no probative value as to diagnosis and etiology. See Espiritu, 2 Vet. App. 492 (1992); 38 C.F.R. §3.159(a) (2002). The Board, therefore, must find that there is no competent evidence of record that the veteran's claimed skin disorders were caused and/or aggravated by his use of VA prescribed medication for his service connected and non-service connected disabilities. The claims for compensation under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.310 are, therefore, denied. The benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151 and/or 38 C.F.R. § 3.310, for an impotence disorder is denied. Entitlement to compensation, under the provisions of 38 U.S.C.A. § 1151 and/or 38 C.F.R. § 3.310, for a skin disorder is denied. ____________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.