Citation Nr: 0908983 Decision Date: 03/11/09 Archive Date: 03/17/09 DOCKET NO. 06-08 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for impotence secondary to the Veteran's service connected post-traumatic stress disorder (PTSD). 2. Entitlement to special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from September 1964 to February 1968. He served in Vietnam, where he earned a Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision of the Wichita, Kansas, regional office (RO) of the Department of Veterans Affairs (VA). The February 2006 statement of the case includes the issue of entitlement to service connection for tinnitus. The Board notes that on the Veteran's March 2006 VA Form 9, Appeal to Board of Veterans' Appeals, he checked both the box that indicated he wants to appeal all of the issues on the statement of the case, and the box stating that he wished to appeal only the issue listed below. Then, the only issue listed below was his erectile dysfunction. However, an April 2006 report of contact with the Veteran confirms that the VA Form 9 was completed incorrectly, and that the Veteran did not wish to appeal his claim for tinnitus. Therefore, the issues are as listed on the first page of this decision. FINDINGS OF FACT 1. The record shows that the Veteran's medications have been know to result in sexual dysfunction, and the evidence both for and against finding that it has resulted in his impotence is in relative equipoise. 2. The Veteran's impotence equates to loss of use of a creative organ. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the appellant's favor, impotence was incurred secondary to the Veteran's service connected post-traumatic stress disorder. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.310(a) (2008). 2. The criteria for entitlement to special monthly compensation for loss of use of a creative organ have been met. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350(a) (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA At the outset, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). The VCAA is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Service Connection and Special Monthly Compensation The Veteran contends that the medication for his service connected PTSD has caused him to develop impotence and erectile dysfunction. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995); see also 38 C.F.R. § 3.310(b). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the Veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). SMC is a special statutory award, in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k) through (s) and 38 C.F.R. §§ 3.350 and 3.352. Pertinent to the Veteran's claim here, SMC is payable at a specified rate if the Veteran, as the result of service- connected disability, has suffered the anatomical loss or loss of use of one or more creative organs. 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a). Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. 38 C.F.R. § 3.350(a)(1)(i). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The record shows that entitlement to service connection for PTSD was established in an April 1999 rating decision. A 30 percent evaluation was assigned for this disability. The evaluation was increased to the current 100 percent level in a March 2001 rating decision. The evidence includes VA treatment records dated May 2001, which show that the Veteran was tolerating his medication well without genitourinary complaints. However, October 2001 VA treatment records note that the Veteran complained of sexual dysfunction since he began taking sertraline (Zoloft). He was started on Viagra. Additional VA treatment records from November 2001 indicate that the Veteran was not having sex, but attributes this to a history of venereal disease. March 2002 VA treatment records indicate that the Veteran complained of sexual dysfunction that was not helped with Viagra. He was prescribed a larger dosage. April 2002 treatment records report that the Viagra was working, but included a diagnosis of erectile dysfunction. April 2002 group therapy records note that the topic discussed was PTSD and sexual dysfunction. In an August 2004 letter, D.J., a VA advanced registered nurse practitioner and clinical specialist notes that he has seen the Veteran from 1998 to 2004. The Veteran was diagnosed with PTSD and a major depressive disorder secondary to the PTSD. His treatment plan included medications such as Risperidone and Zoloft. The known side effects of these medications included impotence. Furthermore, it was noted that the Veteran's mental illnesses could affect sexual function. The Veteran was afforded a VA genitourinary examination in January 2005. He complained of being unable to obtain an erection since being placed on antidepressants in 2000. Although the Veteran's claim folder was not available, his VA treatment records were available and reviewed. After an examination of the Veteran and review of the medical record, the diagnosis was impotence of organic origin. The examiners opined that the Veteran's impotence was not as likely at not related to psychiatric medication and most likely a result of other factors, such as being overweight, tobacco abuse, and significant alcohol abuse. The examination was conducted by another advanced registered nurse practitioner and co-signed by a primary care physician. A January 2006 letter from D.J., repeated the same opinion he supplied in the August 2004 letter. After careful consideration of the Veteran's contentions, the medical records, and the doctrine of reasonable doubt, the Board finds that entitlement to service connection for impotence as secondary to the Veteran's service connected PTSD is warranted. The VA treatment records show that the Veteran's sexual problems began sometime after he was prescribed Risperidone and Zoloft to treat his PTSD. He reported these problems and sought treatment three years before submitting his claim for service connection. The VA treatment records dated from 2001 to 2002 appear to accept that his problems are the result of his medication. The two letters from D.J. note that the known side effects from the Veteran's medication include impotence, and this has been confirmed in an internet search by the Board. The January 2005 VA examination and opinion found that the Veteran's impotence was related to his weight and substance abuse. However, the Board observes that although this opinion was cosigned by a physician, the examination was conducted and the opinion was authored by another nurse practitioner. There is no evidence to show that the opinion from this nurse practitioner should be afforded greater evidentiary weight than the positive opinion from nurse practitioner D.J. Moreover, the January 2005 opinion was formulated without the benefit of the claims folder, and does not acknowledge or attempt to distinguish itself from the positive opinions submitted by D.J. The Board finds that the evidence both for and against the Veteran's claim is at least in equipoise, in which case service connection is established. Similarly, the Board finds that the criteria for entitlement to special monthly compensation for loss of use of a creative organ have been met. The Veteran does not claim and there is no evidence to show that the Veteran has the anatomical loss of his creative organs. However, as noted above, the evidence does show that the medication used to treat his service connected PTSD results in impotence. The Board finds that this equates to loss of use of the creative organ, in which case entitlement to special monthly compensation is established. 38 U.S.C.A. § 1114(k), 38 C.F.R. § 3.350(a). ORDER Entitlement to service connection for impotence secondary to the Veteran's service connected post-traumatic stress disorder is granted. Entitlement to special monthly compensation for loss of use of a creative organ is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs