Citation Nr: 0528308 Decision Date: 10/20/05 Archive Date: 11/01/05 DOCKET NO. 01-00 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for impotence claimed as due to treatment for hypertension at Department of Veterans Affairs (VA) medical facilities. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. A. Seaman, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1979 to August 1982 and from October 1996 to July 1997. This case is before the Board of Veterans' Appeals (Board) on June 2003 remand from the United States Court of Appeals for Veterans Claims (Court) pursuant to a May 2003 unopposed motion by the Secretary of VA (Appellee's Motion). The appeal was initiated from an April 2000 decision by the Phoenix VA Regional Office (RO). The case was before the Board in November 2002, when the Board denied compensation under 38 U.S.C.A. § 1151 for impotence claimed as due to treatment for hypertension at VA medical facilities. The veteran appealed the November 2002 Board decision to the Court, resulting in the June 2003 Court Order vacating the Board decision and remanding the claim for readjudication. In April 2004, the Board remanded the case for reasons set forth in the Appellee's Motion; primarily to provide further notice of the Veterans Claims Assistance Act of 2000 (VCAA), and provide for RO initial consideration of additional evidence. The veteran had been represented in this appeal by the Paralyzed Veterans of America (PVA). In a letter received by PVA in December 2004, the veteran expressly revoked PVA's authority to represent him in this appeal; and in a January 2005 letter to the RO, PVA acknowledged the revocation. Based on a statement on a VA Form 21-4138 received by the RO in September 2004, it appears that the veteran has raised an issue of entitlement to an increased rating for his service- connected lumbosacral spine disability. The RO has not yet adjudicated this claim, and it is referred to the RO for appropriate action. FINDINGS OF FACT It is not shown that the veteran's erectile dysfunction disorder (impotence) was actually caused by VA treatment for hypertension; that it is due to fault on the part of VA; or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. CONCLUSION OF LAW The criteria for establishing entitlement to benefits under 38 U.S.C.A. § 1151 for impotence claimed as due to VA treatment for hypertension are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102 (2005), 3.361 (effective September 2, 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The veteran was provided VCAA notice in September 2001 correspondence from the RO, in additional correspondence from the RO in April and July 2004, and in a supplemental statement of the case (SSOC) issued in July 2005. Although he was provided the appropriate and adequate notice/information subsequent to the rating decision appealed, he is not prejudiced by any notice timing defect. He was notified (in the April 2000 decision, in a statement of the case (SOC) issued in May 2000, in September 2001 correspondence, in the April and July 2004 correspondence, and in the July 2005 SSOC) of everything required, and has had ample opportunity to respond or supplement the record. Specifically, the September 2001 correspondence, the April and July 2004 correspondence, and the July 2005 SSOC informed him of the allocation of responsibility of the parties to identify and obtain additional evidence in order to substantiate his claim. The case was reviewed de novo subsequent to the notice, and the veteran has had ample opportunity to respond. Consequently, he is not prejudiced by any notice timing deficiency. Regarding content of notice, the April 2000 decision, and the SOC and SSOC, informed the veteran of what the evidence showed and why the claim was denied. He was advised by the September 2001 correspondence, the April and July 2004 correspondence, and the SSOC, that VA would make reasonable efforts to help him get pertinent evidence, but that he was responsible for providing sufficient information to VA to identify the custodian of any records. The September 2001 correspondence, the April and July 2004 correspondence, and the SSOC advised him of what the evidence must show to establish entitlement to benefits under 38 U.S.C.A. § 1151 for a disability claimed as a result of VA treatment; and those documents advised the veteran of what information or evidence VA needed from him. The RO asked him to submit, or provide releases for VA to obtain, any pertinent records. He was expressly asked to "tell [VA] about any additional information or evidence that you want us to try to get for you," (see September 27, 2001 letter); to let VA know "[i]f there is any other evidence or information that you think will support your claim, and to send to VA "any evidence in your possession that pertains to your claim." (See July 13, 2004 letter). Everything submitted to date has been accepted for the record and considered. As recently as August 2005, the veteran reported that he "ha[s] no further additional information concerning my appeal or any comments." Regarding the duty to assist, the Board directed additional development in April 2002. The development, to include a VA examination with medical opinions, has been completed, and as noted above (and pursuant to the June 2003 Court Order), the Board remanded the case to provide for RO initial consideration of the evidence. VA has obtained all pertinent/identified records that could be obtained, and all evidence constructively of record has been secured. Evidentiary development is complete to the extent possible. VA's duties to notify and assist are met. It is not prejudicial to the veteran for the Board to proceed with appellate review. Mayfield, supra; Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Background The medical evidence of record establishes that hypertension was initially diagnosed in September 1996, and the veteran was placed on antihypertensive medication by VA physicians. The medication and dosage were adjusted by VA physicians on numerous occasions. Service connection for hypertension was denied by rating decisions in August 1998 and in January 2002. VA outpatient records from 1991 through December 2004 reveal that, in October and November 1999, the veteran complained of erectile dysfunction that became manifest two to three months earlier. A December 1999 outpatient report shows that the veteran had an allergic reaction to Nifedipine, and thus his prescription for hypertension was changed to Diltiazem. It was noted that the veteran was asymptomatic with resolved urticaria, but continued to suffer from impotence. A March 2000 outpatient record shows that the veteran inquired about the potential side effects of his prescribed antihypertension medications, and he wondered if they could cause impotence. He was informed that most antihypertensives, including his current medications, could cause some degree of erectile dysfunction. He was also informed, however, that that "[o]ther causes of impotence include but not limited to peripheral vascular disease, tobacco use, psychogenic disorders, neurological dysfunction, hypotestosteronism, etc." An October 2000 VA medical record shows an August 2000 diagnosis of impotence of organic origin. A September 2001 VA outpatient record reveals that veteran was informed that his cholesterol was high, and that hyperlipidemia can contribute to impotence. In January 1999 the veteran testified before a hearing officer at the RO. While this hearing was conducted in regard to claims other than the issue now before the Board, the veteran testified that he took medication for his high blood pressure. During a September 2001 VA routine medical examination and follow-up visit, the veteran complained of impotence of approximately one year's duration, characterized by the inability to maintain an erection. He reported that he was referred to a University Medical Center where he was given free "generic Viagra" tablets, but the medication did not work because the tablets were "fake Viagra." He denied other urologic symptoms such as dysuria, hematuria, hesitancy, difficulty voiding, or testicular pain. The physician noted that an alprostadil urethral suppository had not improved the veteran's impotence. The diagnoses included, in pertinent part, uncontrolled hypertension and erectile dysfunction, and a trial of Viagra was prescribed. A July 2002 VA outpatient record indicates that a pump, MUSE (Medicated Urethral System for Erection), injections, and Viagra were all utilized, unsuccessfully, to alleviate the veteran's erectile dysfunction. In an April 2002 request for additional development, the Board directed that the veteran be afforded a VA urology examination to ascertain whether the veteran has impotency, and if so its etiology. Regarding etiology, the Board requested that the examiner "should specifically indicate whether any impotency is, at least as likely as not, due to VA medical treatment (e.g., medication for hypertension)." On August 2002 VA genitourinary examination, the veteran claimed a history of hypertension since 1976, and reported that he had been on various medications to alleviate hypertension. He complained of intermittent problems with venous incompetence over the prior several years, and reported that he could achieve, but not maintain, an erection. He denied all other urinary tract problems, but complained that the impotency had progressively worsened to a point that he was not able to maintain an erection for more than approximately 45 seconds. He reported that Viagra was not effective, and that he had a problem operating a pump due to a hand disorder. He expressed a desire for a prosthetic implant. The examiner stated that the problem was one of venous incompetence; the veins could not close and trap blood in the penis for any significant length of time. No endocrine problems were evident, and "neurological problems with his hand and previous C5-6 spinal fusion do not have any impact on the [veteran's] problem with his erectile dysfunction, nor any infections." The examiner noted that previous treatment through Viagra, MUSE, vacuum devices, and rings was a "mixed success," and that the veteran was not satisfied with that regimen and wished to have a penile prosthesis implant. It was reported that the veteran's erectile dysfunction "is one of venous incompetence and the inability of the veins to close and trap the blood in the penis long enough for [the veteran] to use his erection." The urologist opined that the veteran's erectile dysfunction was "[m]ost likely venous incompetence leading to erectile dysfunction for the last 11/2 to 2 years. This is not related to the [veteran's] arterial hypertension and no treatment has been an etiological factor in this problem." A VA hospitalization report shows that the veteran underwent implacement of a penile prosthesis in November 2002. Postoperative recovery was normal. The veteran was on intravenous antibiotics for 24 hours. The wound appeared to be healing satisfactorily on the first postoperative day. There was no hematoma, there was minimal discharge from the wound, and the scrotum appeared normal. At the time of discharge the veteran was afebrile, his vital signs were stable, and pain control was satisfactory. He was instructed to continue antibiotics and apply compresses on the scrotum and penis for pain. VA outpatient records show that the veteran was seen in February 2003 after complaining of pain and dysuria since placement of the prosthetic implant. He also reported that the prosthesis had failed to deflate since January 2003, and he requested removal of the implant as soon as possible. VA medical professionals noted that the prosthesis had proven defective, and suggested that the veteran undergo removal of the penile prosthesis at a private medical facility, where removal of the prosthesis could be accomplished sooner than at a VA medical facility. The veteran underwent removal of the prosthesis at a private medical facility, and in March 2003 he was seen in a VA medical facility for an incision recheck. He had no complaints of pain, but he expressed concern as to whether the incision site was infected, along with concern that no scab had formed. Examination revealed a 2 centimeter midline incision to the scrotum without erythema, edema, or discharge. The sutures were intact. The infection aspect was with inverted wound edge, right aspect. Under sterile procedures, three sutures were placed without complication. The veteran was instructed to keep the wound clean and dry. Follow-up examination showed that the incision site was healing well. The most recent medical reports of record, dated through December 2004, continue to show diagnosis of impotence, organic origin. Legal Criteria and Analysis When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. For claims filed on or after October 1, 1997, as here, the veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment , or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment or examination caused the veteran's additional disability and that VA failed to exercise the degree of care expected of a reasonable health care provider, or furnished the hospital care, medical treatment, or surgery, without the veteran's informed consent. 38 C.F.R. § 3.361(d). Although the record shows that the veteran does suffer from erectile dysfunction (impotency), there is no medical evidence to support a finding that any VA treatment, and specifically the treatment via medication prescribed for his hypertension, caused additional disability. In fact, the only competent (medical) evidence in this matter (VA medical examination and opinions in August 2002) is to the effect that the veteran's impotency is in no way related to any VA treatment. (See August 2002 examination report). In fact, the August 2002 examiner expressly reported that the veteran's erectile dysfunction is the direct result of venous incompetence, and "is not related to the veteran's arterial hypertension and no treatment has been an etiological factor in this problem." There is no medical evidence of record to the contrary. What the record shows is that the veteran has erectile dysfunction, and carries a diagnosis of impotence of organic origin which had its onset in approximately mid-1999, and is unrelated to VA treatment for hypertension. The veteran's own opinions that his erectile dysfunction is due to VA treatment are not competent evidence, as he is a layperson, and medical diagnosis and nexus are matters requiring medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's claim must be denied because he has not met the threshold requirement for establishing entitlement to § 1151 benefits, i.e., showing that he has additional disability caused by VA treatment. See 38 C.F.R. § 3.361(c). Hence, it is not necessary to address further requirements necessary to establish entitlement to the benefit sought, including whether there was negligence or other instance of fault on the part of VA (or whether there is disability due to an unforeseen event). However, it is noteworthy that the veteran's allegations as to negligence are nonspecific, and that there is no competent evidence (medical opinion) questioning the care VA provided. The preponderance of the evidence is against the claim, and it must be denied. ORDER Entitlement to benefits under 38 U.S.C.A. § 1151 for impotence claimed as due to treatment for hypertension at VA medical facilities is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs