Citation Nr: 0836211 Decision Date: 10/22/08 Archive Date: 10/27/08 DOCKET NO. 05-39 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for penile dysfunction, to include as secondary to medication taken for service- connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from January 1976 to October 1979, and from February 1981 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2008. A copy of the transcript of that hearing is of record. At the time of the hearing, the record was held open for an additional 30 days to allow the veteran to submit additional evidence. In March 2008, the veteran, through his representative, submitted additional evidence. The Board notes that the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral carpal tunnel syndrome was originally developed for appellate review; however, in a November 2006 rating action, the RO reopened the veteran's claim for service connection for bilateral carpal tunnel syndrome, and granted service connection for carpal tunnel syndrome of the right and left hands, effective from July 28, 2004. Therefore, this issue is no longer before the Board. In the November 2006 rating action, in addition to granting service connection for carpal tunnel syndrome of the right and left hands, the RO also granted service connection for Raynaud's syndrome of the digits, bilateral hands, effective from July 28, 2004. The veteran filed a notice of disagreement in January 2007, disagreeing with the effective date of the grant of service connection for the aforementioned disabilities. In February 2008, the RO issued a statement of the case. However, there is no indication in the record that the veteran has filed a substantive appeal (VA Form 9) with respect to any earlier effective date claim. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2007); Roy v. Brown, 5 Vet. App. 554 (1993). (Emphasis added.) Accordingly, the issues of entitlement to an effective date earlier than July 28, 2004, for the grant of service connection for carpal tunnel syndrome of the right hand, entitlement to an effective date earlier than July 28, 2004, for the grant of service connection for carpal tunnel syndrome of the left hand, and entitlement to an effective date earlier than July 28, 2004, for the grant of service connection for Raynaud's syndrome of the digits, bilateral hands, are not before the Board for appellate consideration. FINDING OF FACT The relevant competent evidence is in equipoise as to whether the veteran's penile dysfunction was caused by medication taken for his service-connected disabilities. CONCLUSION OF LAW Service connection for penile dysfunction, as secondary to medication taken for service-connected disabilities, is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As discussed in more detail below, sufficient evidence is of record to grant the veteran's claim for secondary service connection for penile dysfunction on the basis that it was caused by medication taken for service-connected disabilities. Therefore, no further development is needed with regard to this appeal. II. Factual Background The veteran's service medical records are negative for any complaints or findings of penile dysfunction. The records show that in December 1997, the veteran underwent a retirement examination. At that time, his genitourinary system was clinically evaluated as "normal." By a February 1999 rating action, the RO granted the veteran's claims of entitlement to service connection for the residuals of a fracture of the left humerus; the residuals of a right rotator cuff tear; degenerative disc disease of the lumbar spine; degenerative joint disease and degenerative disc disease of the cervical spine; the residuals of a medial meniscus tear of the right knee; a bunion with osteoarthritis of the 1st metatarsal phalangeal joint of the right foot; and scars of the left shoulder, left index finger, and left middle finger. In July 2004, the veteran filed a claim of entitlement to service connection for penile dysfunction, to include as secondary to medication taken for service-connected disabilities. The veteran stated that due to his multiple service-connected disabilities, he experienced chronic pain and had to take numerous medications to relieve his pain, to include Motrin and Vicodin. He indicated that due to his pain, he also had trouble sleeping and had to take sleeping pills to fall asleep. In addition, he noted that due to the medication that he took for his service-connected disabilities, he had developed erectile dysfunction and had to take Viagra to have sexual relations with his wife. In support of his claim, he submitted a statement from his wife who noted that the veteran's erectile dysfunction originated while he was in the military. According to the veteran's wife, when the veteran originally injured his back and started taking medication for low back pain, he developed penile dysfunction. By a November 2006 rating action, the RO granted service connection for carpal tunnel syndrome of the right and left hands. In that same rating action, the RO also granted service connection for Raynaud's syndrome of the digits, bilateral hands. In December 2006, the RO requested that a VA physician review the veteran's claims file and provide an opinion as to the etiology of the veteran's penile dysfunction. In January 2007, a VA physician provided a medical statement in which he reported that following a review of the veteran's claims file, it was his opinion that it would be pure speculation to say that the veteran had any specific etiology as to his alleged erectile dysfunction. The physician reported that according to the veteran's wife, the veteran had erection problems during service. However, the physician indicated that the veteran's service medical records, including his December 1997 retirement examination, were negative for any complaints or findings of erectile dysfunction. The physician noted that at present, the veteran took Viagra for erection difficulty. He stated that it was the veteran's contention that due to all of the medications that he was taking for his service-connected disabilities, he had developed sexual dysfunction. However, the physician indicated that after review of all the medications that the veteran was taking, it was his opinion that there was no mediation that caused erectile dysfunction. According to the physician, although there were two medications, Cymbalta and Flexeril, that caused decreased libido, there were no additional medications that the veteran was taking that caused any penile dysfunction or libido problems. In light of the above, the physician opined that the veteran's alleged penile dysfunction had no specific etiological basis that could be established. Thus, the physician concluded that it would be pure speculation to say that any particular etiology existed for the veteran's alleged penile dysfunction. In March 2008, the veteran, through his representative, submitted directly to the Board a private medical statement from J.C.L., D.O., dated in February 2008. In the statement, Dr. L. indicated that he had been treating the veteran for the past decade. Dr. L. noted that the veteran suffered from a number of medical conditions, primarily severe chronic pain which was felt to be significantly related to the veteran's military service. According to Dr. L., the veteran was also suffering from erectile dysfunction which was caused by the antidepressant medications that he was prescribing to treat the veteran's chronic back and hand pain. III. Analysis Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 a service-connected disability or (b) aggravated by a service- connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The Court of Appeals for Veterans' Claims (Court) has held that, when aggravation of a veteran's non-service-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected, at least to the extent of the aggravation. Allen, 7 Vet. App. at 439. In this case, the record contains no evidence to support a finding that the veteran's penile dysfunction was incurred in service. Accordingly, service connection pursuant to 38 C.F.R. § 3.303 is not established. However, the evidence is sufficient for a finding of service connection under the provisions of 38 C.F.R. § 3.310(b). In this regard, the veteran contends that the medication that he takes for his service-connected disabilities has caused him to develop penile dysfunction. After reviewing the evidence of record, the Board finds that the relevant evidence is in approximate equipoise and therefore supports the veteran's claim for service connection for penile dysfunction on the basis that it was caused by the medication that he took for his service- connected disabilities, specifically his service-connected low back disability, carpal tunnel syndrome of the right and left hands, and Raynaud's syndrome of the digits, bilateral hands. See 38 U.S.C.A. § 5107(b) (there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence). The Board recognizes that in the January 2007 medical statement from a VA physician, the physician opined that it would be pure speculation to say that any particular etiology existed for the veteran's penile dysfunction. Specifically, the physician noted that it was his opinion that none of the medications that the veteran was taking caused erectile dysfunction. However, in the February 2008 private medical statement from the veteran's treating physician, Dr. J.C.L., Dr. L. stated that the veteran was suffering from erectile dysfunction which was caused by the antidepressant medications that he was prescribing to treat the veteran's chronic back and hand pain. In this regard, the Board observes that the veteran is service-connected for degenerative disc disease of the lumbar spine, carpal tunnel syndrome of the right and left hands, and Raynaud's syndrome of the digits, bilateral hands. The Board finds that in reading all of the opinions together, what emerges is positive and negative evidence that is in relative equipoise as to whether the veteran's penile dysfunction was caused by medication that he took for his service-connected disabilities, specifically his degenerative disc disease of the lumbar spine, carpal tunnel syndrome of the right and left hands, and Raynaud's syndrome of the digits, bilateral hands. Thus, the Board finds that, with application of the doctrine of reasonable doubt, service connection for penile dysfunction as secondary to medication taken for service-connected disabilities, is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. ORDER Secondary service connection for penile dysfunction is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs