Citation Nr: 0614645 Decision Date: 05/18/06 Archive Date: 05/31/06 DOCKET NO. 02-08 124 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to compensation benefits for erectile dysfunction pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Counsel INTRODUCTION The veteran had honorable active service from March 1963 to March 1966. Initially, the Board of Veterans' Appeals (Board) notes as it did in its remand of April 2004 that it derives its jurisdiction in this matter from the veteran's July 2000 notice of disagreement with the rating action in June 2000. The Board further notes that it remanded this case in April 2004 for procedural and evidentiary considerations, and that the action requested in its remand has been accomplished to the extent possible. This case is now ready for further appellate review. FINDING OF FACT The preponderance of the credible and probative evidence of record shows that there is no additional disability associated with the veteran's erectile dysfunction that is the result of carelessness, negligence, lack of skill, or involved errors in judgment or similar instances of fault on the part of the VA. CONCLUSION OF LAW Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for erectile dysfunction is not warranted. 38 U.S.C.A. § 1151 (West 2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background At the outset, the Board notes that this matter has been sufficiently developed pursuant to the guidelines established in the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005) (VCAA). In this regard, the record reflects that appellant has been notified on numerous occasions of the need to provide medical evidence of current additional relevant disability and evidence of fault on the part of VA. First, prior to the initial rating action of June 2000, correspondence from the regional office (RO) in April 2000 generally advised the veteran of the evidence necessary to substantiate his claim for compensation under 38 U.S.C.A. § 1151, and of the respective obligations of the VA and the veteran in obtaining that evidence. Quartuccio v. Principi, 16 Vet. App. 183 (2002). While the April 2000 letter also contains language related to claims for service connection that is inapplicable to the instant claim and old law relating to well-grounded claims, the Board finds that this letter otherwise provided accurate information, and that any potential confusion was rectified by further communication outlined below. A June 2000 rating decision and August 2000 statement of the case then denied the claim, noting that the evidence failed to establish the VA treatment was the cause of additional disability associated with the veteran's erectile dysfunction. In a second letter, dated in March 2001, the veteran was more specifically advised of the evidence necessary to substantiate a claim for compensation under 38 U.S.C.A. § 1151 and the respective obligations of VA and the veteran in obtaining that evidence. Id. An October 2001 rating decision and an April 2002 statement of the case then notified the veteran of the continued denial of the claim, noting that the evidence of record still did not show that VA treatment had been the cause of additional disability associated with erectile dysfunction. Thereafter, following the Board's remand in April 2004, the veteran was furnished with additional letters in May 2004 and March 2005 that again outlined the evidence needed to substantiate his claim and the obligations of VA and the veteran in obtaining that evidence. Id. In addition, after providing an examination to determine whether the veteran had sustained additional disability associated with his erectile dysfunction due to negligent treatment by VA, a January 2006 supplemental statement of the case advised the veteran that the VA examiner's opinion did not support the existence of additional disability caused by negligent VA treatment. Although the April 2000, March 2001, May 2004, and March 2005 VCAA notice letters did not specifically request that the appellant provide any evidence in the appellant's possession that pertained to the claim as addressed in Pelegrini v. Principi, 18 Vet. App. 112 (2004), as demonstrated from the foregoing communications from the RO and the Board, the Board finds that appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. All the VA requires is that the duty to notify under the VCAA is satisfied, and the claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). The Board further notes that the veteran has been provided with the applicable laws and regulations, and there is no indication that there are any outstanding pertinent medical records or reports that have not been obtained or that are not otherwise sufficiently addressed in documents or records already associated with the claims file. In addition, neither the veteran nor his representative has indicated any intention to provide any medical opinion to contradict any of the opinions or findings of the October 2005 VA examiner. Consequently, based on all of the foregoing, the Board finds that no further notice and/or development is required in this matter under the VCAA. A review of the various statements of the veteran reflects that he essentially maintains that he sustained a significant and permanent increase in his erectile dysfunction as a result of VA's negligent use of certain medication in its treatment of the veteran between February 1994 and its discontinuance in 1997. VA treatment records for the period of January 1994 to October 2005 reflect that in February 1994, the assessment was alcohol dependence and rule out dysthymia, and the veteran was to be continued on Prozac and additionally prescribed Trazodone. In June 1994, the Trazodone had reportedly not been effective in helping with the veteran's insomnia and was discontinued. In October 1994, the veteran was again prescribed Trazodone, at which time the possible side effects were discussed, including priapism. In December 1994, the dosage of Trazodone was increased. In January 1995, the veteran had been prescribed Prozac for depression, but this had reportedly made him impotent, and he had been resting better with an increased dosage of Trazodone. In July 1996, the veteran's medications included Trazodone and Yohimbine. In August 1996, it was noted that the veteran wanted to be continued on Trazodone, and he was again continued on this drug in October 1996, at which time he was again warned of possible adverse effects, including orthostasis and priapism. In November 1996, it was noted that the veteran would continue on Paxil and Trazodone to help him rest at night. Side effects were also reportedly discussed with the veteran. VA treatment records from January 1997 reflect that examination of the genitalia revealed that the left testicle was swollen and tender. The assessment was prostatitis. In February and March 1997, the veteran reported that he was not experiencing any side effects from Trazodone. At the end of April 1997, the veteran's complaints included bloody discharge from his penis with pain. He also noted that his left testicle hurt a lot and would swell periodically. In July 1997, the veteran reported blood on orgasm and the impression was functional problem. Approximately one week later, the veteran reported that he had stopped taking Trazodone because he had read a prescription book and was concerned about the side effects. Ten days later, a history of recurrent hematuria was noted, however, repeated analysis was noted to reveal no evidence of blood. The veteran believed that his problems were due to the use of Trazodone which had been discontinued. Records from August 1997 indicate that the veteran's complaints included hematuria. The veteran also complained that the Trazodone gave him palpitations. At the end of August 1997, the veteran's problems were noted to include impotency for which he was on the medication Yohimbine. In January 1998, it was noted that the veteran had an impotence problem. In early April 1998, it was noted that the use of Paxil for the veteran had been stopped due to sexual dysfunction. At the end of April 1998, it was noted that because of a sex problem, Tenormin had been changed to Lisinopril. At this time, the Lisinopril was also discontinued. In June 1999, the veteran was to be started on testosterone patches. In December 1999, the assessment included included impotence, the etiology of which was possibly vascular or neuro or a combination of both, but that psychiatric was excluded. At the end of December 1999, there was a history of impotence since 1996, and it was noted that he had been sent to the vascular clinic for evaluation of "cold genitals." No deformity was noted. In March 2000, the veteran provided information he obtained with respect to the potential side effects of the drug Trazodone, which included blood in the urine. In July 2000, the problem list included impotence, the etiology of which was possibly vascular or neuro or a combination of both, but that psychiatric was excluded. It was recommended that the veteran begin using a testoderm patch, and if his condition did not improve, Viagra was to be considered. In September 2000, the veteran was advised at taking certain medications at a lower dose, to which the veteran stated that due to side effects of Trazodone (painful erection) and other medications, he would rather not be on medication. In October 2000, it was noted that the veteran was allergic to Trazodone. The problem list included impotence, the etiology of which was possibly vascular or neuro or a combination of both, but that psychiatric was excluded. In November 2000, the veteran's past medical history was noted to include erectile dysfunction, initially treated with the use of Trazodone, but more recently questioned as possibly due to low testosterone, or diabetic or neurogenic in origin. In February 2001, it was again noted that the etiology for the veteran's impotence was possibly vascular or neuro or a combination of both, but that psychiatric was excluded. In April 2001, the assessment included impotence with borderline low testosterone. In September 2001, the veteran's medication list now included Yohimbine, Lisinopril, and testosterone and medications noted as producing allergic or adverse reactions included Trazodone. In January 2002, the veteran's impotence was noted to be improving without medication. In December 2002, the assessment included erectile dysfunction, and it was noted that the veteran would go back on the testosterone patch and the Viagra would also be prescribed. In May 2003, it was noted that the veteran was back on the patch and that his Viagra 50 would be increased to 100. In December 2003, the veteran reported that he had had problems with Trazodone, described as having blood come out the end of his penis. In January 2004, the veteran reported that he ran out of the patch and required Viagra 100, noting that his erection was not quite full. In January 2005, the veteran's problem list included erectile dysfunction, and it was noted that the veteran felt better on the patch and required Viagra 100. In April 2005, the veteran's problem list included erectile dysfunction. It was again noted that the veteran felt better on the patch and required Viagra 100. A VA outpatient record from October 2005 reflects that the veteran desired a letter stating that Trazodone could cause priapism. The veteran explained that he was given this drug in February 1997 without instruction as to this side effect, and that he thereafter had an episode of priapism followed by permanent impotence ever since. VA examination in October 2005 revealed that the examiner reviewed the veteran's claims file in conjunction with his examination of the veteran. The examiner noted that the veteran indicated that he was first put on Trazodone in February 1994, and that this was consistent with the medical evidence of record. On the other hand, the examiner indicated that the veteran's complaint of prolonged erections with bleeding from the end of the penis in January 1997 was noted later in the record. The records from late January 1997 reveal complaints of hematuria, and the examiner believed the findings at this time were consistent with infection. The veteran reported that he had no sexual activity or erections since that time. The examiner further noted a prescription for Yohimbine beginning in 1996 that was only used to treat erectile dysfunction, and the veteran had already been prescribed Trazodone. Thus, the examiner concluded that it was likely that the veteran was having problems with erectile dysfunction prior to the date the veteran claimed his problems began. In April 1997, the examiner noted a record of bloody discharge. In mid July 1997, the veteran had hemtospermia and at the end of the month, a history of recurrent hematuria was noted, however, urinalysis was indicated to be negative for blood. The examiner further noted that there were notations that the veteran had been advised of the possible side effects of Trazodone. Since 1999, it was noted that the veteran had been followed by endocrinology, which had monitored his testosterone level. Subsequent notations caused this examiner to believe that the veteran's erectile dysfunction may be multifactorial, that is vascular, neurological, and hormonal. When asked why he continued to take Viagra, the veteran indicated that he took it for his lungs. The examiner stated that there was no indication that Viagra would have any effect on lung functions. It was clear to the examiner that the veteran was still having erections to some extent. The examiner believed that the veteran's request for various medications over a long period of time more or less confirmed his erectile dysfunction. The erectile dysfunction claimed was believed by the examiner to be likely due to his low testosterone level. There was also the possibility of neural or vascular dysfunction in the pelvis, as the veteran had a long history of smoking. The VA examiner also stated that the likelihood of the veteran having long painful erections at the time of his claimed incident in January 27, 1997, as he was taking Yohimbine, a treatment for erectile dysfunction and Trazodone (known to cause side effect known as priapism) at the same time was fairly good. However, he opined that the history that the prolonged erection caused an injury to the penis that created bleeding and erectile dysfunction was very unlikely. In fact, the examiner noted that a treatment for priapism was to release pressure in the penis by bleeding, and bleeding was not noted by the examiner by any testing done at the time. The bleeding noted in later clinical notes was found to more likely be due to infection as there were findings of swelling of the left testicle. Without testosterone replacement, this examiner believed that it was relatively certain that the veteran's erectile dysfunction would be permanent. The examiner further opined that the veteran's erectile dysfunction was not secondary to any medication that the veteran was taking from VA. The examiner believed that stopping or changing medications would have little or no effect. The dysfunction that the veteran described came after an episode of priapism that he felt was due to Trazodone, but there was no documentation that prolonged erections ever occurred, and the definition of priapism required treatment of erections lasting more than four hours and the veteran described erections lasting two hours. With respect to potential damage caused by blood erupting from the penis, the examiner commented that while there was a notation of bloody discharge in a subsequent clinical note, it resolved with treatment with antibiotics and it was the opinion of the treating physician at that point that treatment of prostatitis, epididymitis, and possibly orchitis was necessary to resolve his symptoms. There was also no record of the episode of bleeding due to prolonged erection as reported by the veteran. The examiner also noted that there were other medications that the veteran took during this period of time that apparently affected his erectile dysfunction. With changes in medication, there was an implication that erectile dysfunction improved. Side effects of several medications were also discussed with the veteran. The examiner did not feel the use of these medications showed any lack of skill or proper judgment in using these medications. The problems that the veteran had both psychologically and physically were quite significant and needed to be controlled so that he could have normality in function. The VA examiner concluded that the erectile dysfunction that was currently manifested was not due to the veteran's alleged episode of priapism causing bleeding from his penis and the rationale for this was that the alleged injury from the Trazodone did not occur from erections lasting longer than those required for priapism historically, and that the bleeding noted in the record was insignificant and from another cause (infection). There was also no other pathology noted in the clinical record at the time of the bleeding, at which time there was also reference to prostate infection and infection of the left testicle. The examiner also noted that the infection itself could have had some effect on his erectile functioning. The examiner further commented that the other medications that the veteran had problems with did from time to time cause problems with erectile dysfunction. However, the examiner believed that the veteran's testosterone level was borderline. He also believed that anything that caused a decrease in his ability to function could have had a significant impact. With discontinuing these medications, however, his erectile dysfunction would have returned to what was normal for the veteran at the time. This level may have been below his expectations from previous years. Medications for hypertension also could have caused intermittent problems with erectile dysfunction and had been changed in the past to improve his functioning. None of these medications had caused a prolonged problem with erectile dysfunction and were not irreversible causes for erectile dysfunction as would be the case for the veteran's low testosterone level. The VA examiner believed that this problem was related to secondary hypogonadism which would be a permanent cause for the veteran's erectile dysfunction without treatment. The examiner noted that the veteran continued to get treatment for erectile dysfunction on a regular basis by endocrinology and he felt certain that this would not be the case were it not somewhat successful. An October 2005 VA medical statement from a clinical pharmacist indicates that the veteran was first prescribed Trazodone by VA in February 1994, and that this drug was also provided by other providers intermittently through 1997. This examiner opined that priapism was a possible side effect of Trazodone, and that priapism, untreated, may cause permanent impotence, a rare side effect but possible unfavorable outcome. II. Analysis Effective October 1, 1997, 38 U.S.C.A. 1151 was amended by Congress. See Section 422(a) of PL 104-204. The purpose of the amendment is, in effect, to overrule the Supreme Court's decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence is necessary for recovery under section 1151. In pertinent part, 1151 is amended as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and- "(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was- (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable." Here, the appellant's claim under 38 U.S.C.A. § 1151 was received in March 2000 and, accordingly, the claim will be adjudicated by the Board, as it was by the RO, under the version of 38 U.S.C.A. § 1151 that requires VA fault. As the Board has indicated above, the critical inquiry under post-Gardner interpretation of the 38 U.S.C.A. § 1151 is whether additional disability resulted from VA medical treatment. (Neither the veteran nor his representative have asserted that the veteran sustained additional disability as the result of an event that was not reasonably foreseeable.) In the process of making such inquiry, the Board will address the evidence in favor and against the veteran's claim. A threshold element of a claim for compensation under 38 U.S.C.A. § 1151, both before and after October 1, 1997, includes the existence of a current disability, and as to the veteran's claim for 38 U.S.C.A. § 1151 benefits based on erectile dysfunction allegedly caused by use of the drug Trazodone, the Board finds that there is insufficient medical evidence of currently identifiable additional disability related to VA treatment. In addition, as was noted previously, various communications from the RO clearly placed the veteran and his representative on notice of the need for the veteran to produce evidence of identifiable additional disability that was the result of actions taken by the VA, and the record does not contain such evidence. In fact, a VA examiner performed a thorough review of the record and examined the veteran in October 2005, and concluded that the erectile dysfunction that was currently manifested was not due to the veteran's alleged episode of priapism causing bleeding from his penis, and that the rationale for this was that the veteran's alleged injury from the Trazodone did not occur from erections lasting longer than those required for priapism historically, and that the bleeding noted in the record was insignificant and from another cause (infection). The examiner also noted that there was also no other pathology noted in the clinical record at the time of the bleeding, at which time there was also reference to prostate infection and infection of the left testicle. In support of the veteran's claim the Board readily acknowledges and has examined the October 2005 clinical pharmacist's statement and the veteran's own statements and argument to the effect that the actions of VA in and after February 1994 in using Trazodone to treat the veteran caused him greater erectile impairment than he would have experienced had such medication not been used; however, there is no evidence of any relevant current diagnosis or finding of additional disability associated with the veteran's erectile dysfunction that is the result of VA treatment. Turning first to the statement from the clinical pharmacist, the Board notes that while it notes that priapism was a possible side effect of Trazodone, and that priapism, untreated, may cause permanent impotence, a rare side effect but possible unfavorable outcome, he does not state that the veteran's alleged episode of priapism caused the veteran permanent impotence or a permanent increase in disability associated with the veteran's erectile dysfunction. The Board also notes that this examiner states that priapism may be a possible side effect of Trazodone and may, untreated, cause permanent impotence, and it has been held that medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, the Board finds that this statement is of little probative value as to the issue of whether the veteran sustained additional disability due to the use of the medication Trazodone. It is also long-established that the veteran, as a layperson, is not qualified to render medical opinions regarding the etiology of disorders and disabilities, and his opinion is entitled to no weight. Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Furthermore, it has not been shown that the veteran has the requisite knowledge, skill, training, or education to qualify as a medical expert in order for such statements to be considered competent evidence. Id. In short, the veteran's own speculations as to medical matters are without any probative value. The VA examiner in October 2005 did not find that the VA medical records demonstrated a disability associated with erectile dysfunction other than what would have been expected with the treatment of the veteran's psychological and physical problems over the relevant time period. There is also no medical opinion in the claims file that disputes the opinions and conclusions of the October 2005 VA examiner. Although the VA examiner stated that the likelihood of the veteran having long painful erections at the time of his claimed incident in January 27, 1997, as he was taking Yohimbine, a treatment for erectile dysfunction and Trazodone (known to cause side effect known as priapism) at the same time was fairly good, the examiner went on to state that he did not feel the use of any of the veteran's medications showed any lack of skill or proper judgment and thus, even if there was a finding of some additional disability related to VA treatment, the preponderance of the evidence would still be against the claim. After having reviewed the record in this case, and for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence does not establish that additional residual disability has been sustained by the veteran as a result of the treatment administered to the veteran by the VA. Accordingly, the claim of entitlement to VA benefits pursuant to 38 U.S.C.A. § 1151 is denied. ORDER The veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 for erectile dysfunction is denied. ____________________________________________ K. Parakkal Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs