Citation Nr: 0529097 Decision Date: 10/28/05 Archive Date: 11/09/05 DOCKET NO. 99-19 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for alcohol abuse/dependence, including as secondary to service-connected post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a sexual dysfunction disorder, including as secondary to service- connected PTSD. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), including as secondary to service- connected PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD A. Hinton INTRODUCTION The veteran served on active duty from August 1960 to August 1964, from January 1966 to November 1969, and from December 1978 to July 1982, and had unverified periods of service from 1972 to 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia (RO), which denied the benefits sought on appeal. During the appeal, in August 2003 the Board remanded the case for further development. In correspondence received in July 2003, the veteran claimed entitlement to service connection for diabetes mellitus Type II, with numbness in both legs, due to exposure to Agent Orange. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. VA has provided all notifications and has rendered all assistance required by the VCAA. 2. The veteran has alcohol abuse/dependence that is related to his service-connected PTSD. 3. The veteran has a sexual dysfunction disorder that is related to his service-connected PTSD. 4. COPD was first manifested many years after service, is not related to disease or injury or other incident in service; and is not related to, or increased by, any service- connected disorder. CONCLUSIONS OF LAW 1. Alcohol abuse/dependence is proximately due to or the result of the veteran's service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2005). 2. A sexual dysfunction disorder is proximately due to or the result of the veteran's service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2005). 3. COPD was not incurred in or aggravated by service, nor is it proximately due to service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA and Duty to Notify and Assist The Board must first address the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et. seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The law addresses the notification and assistance requirements of VA in the context of claims for benefits. The Court has held that a notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the Court held that a notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must accomplish the following: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Id. Given the favorable disposition of two of the issues decided below-granting of the claims for service connection for alcohol abuse/dependence, and for a sexual dysfunction disorder -the Board notes that any possible deficiencies in the duty to notify and to assist with respect to the current appellate review of those claims constitute harmless error and will not prejudice the veteran. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Regarding the COPD claim, in letters dated in May 2003 and December 2003, and in the statement of the case and supplemental statements of the case, the RO notified the appellant of the information and evidence necessary to substantiate the claims, the information and evidence that VA would seek to provide, and the information and evidence the appellant was expected to provide. In addition, the RO asked the appellant to submit any evidence in his possession that pertains to the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA-compliant notice was not provided to the appellant prior to the first unfavorable adjudication of this case. However, after VCAA-compliant notice was sent, the claim was readjudicated without "taint" from prior adjudications. The Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. He was given ample time to respond. VA has requested records from all sources identified by the veteran. The veteran has been afforded pertinent examination. For these reasons, to decide the appeal now would not be prejudicial to the claimant. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds that VA has complied with the VCAA duties to notify and assist. II. Analysis The veteran argues that service connection is warranted for alcohol abuse/dependence, sexual dysfunction, and COPD on the basis that these claimed disorders are secondary to his service-connected PTSD. Service connection may be established for disability shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 2002). If the disability is not shown to have been chronic in service, continuity of symptomatology after separation is required to support the claim. 38 C.F.R. § 3.303(b) (2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2004); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Establishing service connection on a secondary basis 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. 38 C.F.R. § 3.310(a) (2004); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Where proximate causation of the underlying non service- connected disability is not shown, secondary service connection may still be established where disability due to aggravation of a non service-connected disability by a service-connected disability or disabilities is shown. See Allen, Id. In Allen, the CAVC held that the term "disability" for service connection purposes "refers to impairment of earning capacity, and that such definition mandates that 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, shall be compensated." Allen, at 448. Thus, when post-service aggravation of a non service- connected disorder is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing before the aggravation. In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lay statements are considered to be competent evidence when describing the symptoms of a disease or disability or an injury. However, when the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that the veteran possesses medical expertise and she does not argue otherwise. The Board has reviewed all of the considerable evidence of record relevant to the claim, which consists of the veteran's contentions; service personnel and medical records; VA and private treatment records; the reports of VA examinations; and a hearing transcript. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, it is not required to discuss each and every piece of evidence in a case. The evidence submitted by the veteran or on his behalf is extensive and will not be discussed in detail. The Board will summarize the relevant evidence where appropriate and material to the issue here. The Board initially notes that the claims file includes sufficient medical evidence showing diagnoses of sexual dysfunction, alcohol abuse/dependence, and COPD. VA treatment records contain assessments including erectile dysfunction, and impotence. At the conclusion of a VA genitourinary examination in June 2005, the examination report contains an impression addressing the etiology of the veteran's "erectile dysfunction." VA treatment records in the 2000s contain assessments including alcohol abuse and alcohol dependence. During a June 2005 VA examination for PTSD, the examiner opined regarding the etiology of the veteran's alcohol abuse. During VA respiratory examination in June 2005, a diagnosis of COPD was made. Because the record contains competent medical evidence of these claimed disorders-sexual dysfunction, alcohol abuse/dependence, and COPD-and no evidence to the contrary, the Board concedes the presence of such disabilities. The question therefore is whether each such claimed disability was due to disease or injury incurred or aggravated during active military service, or proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §§ 3.303, 3.310. A. Service Connection for Alcohol-related Disability In addition to the law discussed above, with respect to the claimed alcohol-related disability, the following apply. Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n) (2005). The simple drinking of an alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities that are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(c)(2) (2005). "Alcohol abuse" means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to the user. 38 C.F.R. § 3.301(d) (2004); see also VAOPGCPREC 7-99. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301(d) (2005). The United States Court of Appeals for the Federal Circuit (CAFC) has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). However, the CAFC indicated that veterans could recover only if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen at 1381. The CAFC further stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen at 1381. The above-cited legislation enacted by Congress expressly prohibits the grant of direct service connection for alcohol or drug abuse based on claims filed on or after October 31, 1990, and requires that disability resulting from drug or alcohol abuse be regarded as the products of willful misconduct. As to direct service connection, therefore, the present claim must be denied as there is no entitlement under the law. See Sabonis v. Brown, 6 Vet. App. at 429 (1991). However, the veteran has potential eligibility to establish service connection for alcoholism on a secondary basis, provided that the evidence demonstrates that the onset of chronic alcoholism was proximately due to, the result of, or aggravated by disability associated with the veteran's service-connected PTSD. The record shows that in a July 2004 rating decision, the RO granted service connection for PTSD. Here, consistent with the veteran's contentions, during the June 2005 VA examination for PTSD, the examiner opined that the veteran's alcohol abuse was at least as likely as not due to his PTSD. In that connection, the examiner opined that the two conditions were intimately associated. Elsewhere in the examination report, the examiner noted that due to impairment from the PTSD, the veteran was isolated and felt more alone, more vulnerable, more frightened, and more subject to traumatization; and that these elements would make for the readily available solution of alcohol abuse. This opinion as to the etiology of the veteran's alcohol abuse/dependence-attributing the veteran's alcohol abuse/dependence to his PTSD-is uncontradicted. Thus, as the evidence attributing the alcoholism to PTSD is uncontradicted, the Board finds that the evidence supports the claim of secondary service connection for alcohol abuse/dependence. Therefore, based on the foregoing, the Board concludes that the veteran's alcohol abuse/dependence, is proximately due to his service-connected PTSD. Thus service connection for that disorder is warranted. B. Service Connection for Sexual Dysfunction, and for COPD Service medical records show no medical evidence indicating treatment for problems with sexual dysfunction, or COPD. Although the veteran reported that he had had shortness of breath at a February 1982 discharge examination, on examination, the examiner evaluated the lungs and chest, as well as the genitourinary system, as normal. During a July 1982 discharge examination, the veteran reported he had had no problems with shortness of breath or other referable conditions. On examination at that time, the examiner evaluated the lungs and chest, as well as the genitourinary system, as normal. Private medical records show that the veteran was treated for right lower lobe pneumonia in October 1995. An associated consultation report noted a history that the veteran had been a smoker for more than 40 years; had worked in the mines for five years and also at a glass factory. Before that he was in the Army. Private treatment records in 1995 and 1996 show complaints including shortness of breath and wheezing. In December 1995, the veteran reported that he had had pneumonia one month before. A March 1996 record contains an assessment of pneumonia. The first evidence of any genitourinary problems is shown in private treatment records in 1997. A March 1997 radiology report contains an impression of a small simple cyst within the left testicle; suspect spermatocele along the superior aspect of the left testicle; and small hydroceles bilaterally. In a February 1998 statement from Gasper Z. Barcinas, M.D., he stated that the veteran was under his care for severe COPD. VA treatment records that month contain an assessment of erectile dysfunction. A January 2000 VA radiology report of chest examination contains an impression of no evidence of previously suspected pulmonary nodule in the left lower lung field; and there is suggestion of COPD with flattening of the diaphragms. A February 2000 VA report of urology consultation shows that the veteran was seen with a history of diabetes, hypertension, coronary artery disease, and PTSD; and he also had a mass in the scrotum. At that time, the veteran reported that he had not had an erection for four years, and no physical urge to have sex. He had had the mass in the scrotum for one to two years and it was getting bigger. After physical examination, the assessment included impotence. The report noted that the treatment provider discussed the causes of erectile dysfunction, and noted that the veteran was on medications for hypertension and PTSD, all of which can cause impotence. A March 2000 VA radiology report of an echogram of the scrotum contains an impression that there is evidence of small hydroceles bilaterally; texture of the testicles appear to be unremarkable bilaterally; 2.3 x 1.9 cm. fluid collection in the head of the epididymis is seen, which could represent spermatocele. A September 2000 report of VA pulmonary function testing concluded with an assessment which includes chronic dyspnea; moderately severe COPD (FEV1 1.47/52%); tobacco abuse; chronic ETOH abuse; PTSD; and marked decrease in DLCO (??secondary to COPD vs. possibly asbestos related). In an October 2000 statement, Gaspar Barcinas, M.D., discussed treatment of the veteran that month. At that time, the veteran reported a history of being diagnosed with asbestosis five months before, and that he had had emphysema for five years. The veteran reported complaints including having cough mostly in the morning, with occasional green and yellow sputum production; wheezing and dyspnea on exertion; and hemoptysis one month before. After examination, the statement contains an impression that the veteran had COPD with emphysema and chronic bronchitis. In this connection, Dr. Barcinas noted the veteran had a long history of tobacco abuse and had had occupational exposures. The report of a June 2005 VA examination, for genitourinary and respiratory systems, shows that the examiner reviewed and discussed the record contained in the claims file, and examined the veteran for genitourinary and respiratory conditions. With respect to the respiratory examination, the veteran reported that he had smoked 8 to 10 cigarettes a day for the last 50 years, and that when he gets nervous, he gets short of breath. After examination, the report contains an impression including (1) COPD; (2) sleep apnea; (3) tobacco abuse; and (4) asbestos exposure by history. The examiner opined that the veteran had a long-standing COPD and in view of his tobacco abuse over the years and in view of the breathing studies, the examiner suspected that the veteran would have trouble breathing regardless of the PTSD. The examiner concluded with an opinion that therefore, the veteran's COPD is not specifically related to his PTSD. With respect to the genitourinary examination, the veteran maintained that he had erectile dysfunction from his PTSD. He complained that he never really had the urge to have sex and had trouble with erections. The veteran reported that he had lost 58 pounds in the last few months mainly due to nervousness. The examiner noted that the various medications that the veteran had been on for psychiatric problems as well as hypertension all can lead to erectile dysfunction. The examination report concludes with an impression that in view of the veteran's history of hypertension, PTSD, depression, cigarette smoking, and spermatocele, it is the examiner's opinion that the causes of the veteran's erectile dysfunction are multifactorial, and the examiner would have to resort to speculation to determine if the PTSD has caused the erectile dysfunction. i. Erectile Dysfunction In this case, the genitourinary examiner in June 2005 provided an opinion in essence that the causes of the veteran's erectile dysfunction included multiple factors, and these factors included his service-connected PTSD; however, the examiner could not distinguish among them to separate the effects of the service-connected PTSD from that of nonservice-connected disability. The Board notes here also, that the genitourinary examiner in June 2005 indicated that these factors included depression. In this connection, the Board notes that during a March 2001 VA examination, the examiner diagnosed major depressive disorder, chronic, severe, secondary to and a by-product of chronic alcoholism and mixed personality disorder. The Board has in this decision adjudicated the veteran's alcohol abuse/dependence to be service connected. Though a depression disorder has not been separately granted service connection, the March 2001 VA examination opinion provides some evidence that the depression, noted as a factor in the veteran's erectile dysfunction, is associated with the veteran's alcohol abuse/dependence, herein adjudicated as service connected. Though the June 2005 examiner could not distinguish among the several factors enumerated as causes of the veteran's erectile dysfunction, including service connected disability, when it is impossible to separate the effects of a service- connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the claimant's favor and such signs and symptoms must be attributed to the service- connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). After reviewing the entire record, the Board finds that the evidence is at least in equipoise and as such the benefit of the doubt is in favor of the veteran. 38 C.F.R. § 3.102. Therefore, based on the foregoing, the Board concludes that the veteran's sexual dysfunction disorder is proximately due to his service-connected PTSD. Thus service connection for that disorder is warranted. ii. COPD In summary, the veteran's claimed COPD is shown to be not linked to the veteran's service-connected PTSD, nor was any present COPD shown in service or until several years after service. There is no medical opinion or other competent evidence to link any current COPD to any episodes of upper respiratory infection in service, or as claimed, proximately due to the veteran's service-connected PTSD.. Post-service medical records showing no indication of any pulmonary problems until October 1995 when he was treated for pneumonia, or COPD later still, many years after service, are probative evidence against a nexus with service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). The June 2005 VA examiner opined that the veteran had a long- standing COPD, and in view of his tobacco abuse over the years and in view of the breathing studies, the examiner suspected that the veteran would have trouble breathing regardless of the PTSD. The examiner concluded with an opinion that therefore, the veteran's COPD is not specifically related to his PTSD. The Board finds the opinion to be probative on the issue of nexus. By contrast, there is no competent or probative contrary medical evidence that would tend to suggest an affirmative etiological link between the veteran's COPD and his PTSD. While the veteran believes and has asserted that he has COPD related to his service-connected PTSD, he is not shown to be other than a lay person. As such, he has no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board concludes that the veteran does not have COPD that was incurred in or aggravated by service, or secondary to service-connected disorder. Accordingly, based on a review of the entire record, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. Because the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for alcohol abuse/dependence is granted. Service connection for a sexual dysfunction disorder is granted. Service connection for chronic obstructive pulmonary disease is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs