Citation Nr: 0914754	
Decision Date: 04/20/09    Archive Date: 04/29/09

DOCKET NO.  03-16 215	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUES

1.  Entitlement to service connection for a respiratory 
disorder, to include as secondary to Agent Orange exposure.

2.  Entitlement to special monthly compensation due to loss 
of use of a creative organ.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel


INTRODUCTION

The veteran served on active duty from March 1958 to March 
1978.

This matter comes properly before the Board of Veterans' 
Appeals (Board) on appeal from a rating decision by the 
Department of Veterans Affairs (VA) Regional Office in 
Huntington, West Virginia (RO).  This case was remanded by 
the Board in December 2004 for additional development.


FINDINGS OF FACT

1.  The medical evidence of record does not show that the 
veteran's currently diagnosed respiratory disorder is related 
to military service, to include as secondary to Agent Orange 
exposure.

2.  The medical evidence of record does not show that the 
veteran experiences loss of use of a creative organ for VA 
purposes.


CONCLUSIONS OF LAW

1.  A respiratory disorder was not incurred in, or aggravated 
by, active military service and may not be presumed to have 
been so incurred, to include as due to Agent Orange exposure.  
38 U.S.C.A. §§ 1110, 1131, 1116, 5103A, 5107 (West 2002 & 
Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008).

2.  The criteria for entitlement to special monthly 
compensation due to loss of use of a creative organ have not 
been met. 38 U.S.C.A. § 1114(k) (West 2002 & Supp. 2007); 38 
C.F.R. § 3.350(a) (2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the veteran's claims, VA has met all 
statutory and regulatory notice and duty to assist 
provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 
5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326 (2008).  Prior to initial 
adjudication, a letter dated in December 2002 satisfied the 
duty to notify provisions.  Additional letters were also 
provided to the veteran in December 2004, March 2005, 
December 2005, and August 2006, after which the claims were 
readjudicated.  See 38 C.F.R. § 3.159(b)(1); Overton v. 
Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).  The veteran's service 
treatment records, VA medical treatment records, and 
indicated private medical records have been obtained.  VA 
examinations were provided to the veteran in connection with 
his claims.  There is no indication in the record that 
additional evidence relevant to the issues decided herein is 
available and not part of the claims file.  As there is no 
indication that any failure on the part of VA to provide 
additional notice or assistance reasonably affects the 
outcome of this case, the Board finds that any such failure 
is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 
(2006); see also Dingess/Hartman, 19 Vet. App. 473.  Further, 
the purpose behind the notice requirement has been satisfied 
because the veteran has been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claims, to include the opportunity to present pertinent 
evidence.

Respiratory Disorder

Generally, service connection may be granted for a disability 
resulting from disease or injury incurred in or aggravated by 
active military service.  38 U.S.C.A. §§ 1110, 1131; 38 
C.F.R. § 3.303(a).  In addition, 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 order to establish service connection for the claimed 
disorder, there must be (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 current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999).  The determination as to whether these requirements 
are met is based on an analysis of all the evidence of record 
and the evaluation of its credibility and probative value.  
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Additionally, a veteran who, during active military, naval, 
or air service, served in the Republic of Vietnam during the 
Vietnam era shall be presumed to have been exposed during 
such service to an herbicide agent, unless there is 
affirmative evidence to establish that the veteran was not 
exposed to any such agent during that service.  38 U.S.C.A. § 
1116(f); 38 C.F.R. § 3.307.  The following diseases are 
deemed associated with herbicide exposure, under VA law: 
chloracne or other acneform diseases consistent with 
chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's 
lymphoma, acute and subacute peripheral neuropathy, porphyria 
cutanea tarda, prostate cancer, respiratory cancers (cancer 
of the lung, bronchus, larynx, or trachea), soft-tissue 
sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's 
sarcoma, or mesothelioma), and diabetes mellitus (Type 2).  
38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii); 38 C.F.R. § 
3.309.

In this case, the veteran claims that he developed a 
non-carcinogenic respiratory disorder as the result of 
exposure to Agent Orange.  The evidence of record reveals 
that the veteran served in Vietnam.  He is therefore presumed 
under 38 U.S.C.A. § 1116(f), to have been exposed to 
herbicide agents, to include Agent Orange.  However, the 
medical evidence of record does not show a current diagnosis 
of a presumptive respiratory disorder under 38 C.F.R. § 
3.309(e).  Accordingly, presumptive service connection for a 
respiratory disorder based on exposure to herbicides is not 
warranted.

Notwithstanding the foregoing, the United States Court of 
Appeals for the Federal Circuit has determined that the 
Veterans' Dioxin and Radiation Exposure Compensation 
Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 
29 (1984), does not preclude a veteran from establishing 
service connection with proof of actual direct causation.  
Combee v. Brown, 34 F.3d 1039 (Fed.Cir. 1994).  The United 
States Court of Appeals for Veterans Claims has specifically 
held that the provisions of Combee are applicable in cases 
involving Agent Orange exposure.  McCartt v. West, 12 Vet. 
App. 164, 167 (1999).

The veteran's service treatment records show that the veteran 
was treated for acute bronchitis in October 1961.

After separation from military service, in an April 1999 
private medical report, the veteran complained of dyspnea.  
The veteran reported smoking 1 to 2 packs of cigarettes per 
day for "many years."  The report stated that the veteran 
had a probable history of chronic obstructive pulmonary 
disease (COPD).

A January 2000 private x-ray report stated that after views 
of the veteran's lungs, the impression was interstitial 
fibrosis.  The medical evidence of record shows that a 
respiratory disorder has been consistently diagnosed since 
January 2000.

In a July 2000 private medical report, the veteran "admits 
to smoking four to five packs a day of cigarettes."  After 
physical examination, the assessment was COPD, secondary to 
tobacco abuse.

A February 2008 VA respiratory system examination report 
stated that the veteran's claims file had been reviewed.  
After a review of the veteran's service treatment records, 
the examiner stated that the veteran's October 1961 
in-service bronchitis was acute and transitory and responded 
to treatment.  After physical examination, the diagnosis was 
COPD with exacerbation with congestive heart failure 
secondary to new onset atrial flutter.  The etiology was 
listed as a long history of cigarette smoking amounting to 
over 100 pack years.  The examiner stated that the veteran's 
COPD was

not caused or aggravated by Agent Orange 
exposure.  Review of literature via the 
National Library of Medicine today does 
not show any association with or 
causation of COPD with Agent Orange.  It 
is not related to his active duty 
military service.  It developed several 
years after his active duty military 
service.

The medical evidence of record does not show that a currently 
diagnosed respiratory disorder is related to military 
service.  While the veteran's service treatment records 
include a diagnosis of acute bronchitis, this occurred in 
October 1961 and the evidence shows it resolved completely.  
There is no medical evidence that it recurred during the 
remaining 16 years of military service.  While there is a 
current diagnosis of a respiratory disorder, there is no 
medical evidence of record that it was diagnosed prior to 
April 1999, over 21 years after separation from military 
service.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) 
(holding that VA did not err in denying service connection 
when the veteran failed to provide evidence which 
demonstrated continuity of symptomatology, and failed to 
account for the lengthy time period for which there is no 
clinical documentation of his low back condition).  In 
addition, there is no medical evidence of record that relates 
a current respiratory disorder to military service.  The only 
medical evidence of record that addresses the etiology of the 
currently diagnosed respiratory disorder are the July 2000 
private medical report and the February 2008 VA respiratory 
system examination report.  Both of these reports stated that 
the currently diagnosed respiratory disorder was secondary to 
the veteran's long history of tobacco use, and the February 
2008 report specifically stated that it was not related to 
military service or exposure to Agent Orange.

The veteran's statements alone are not sufficient to prove 
that a currently diagnosed respiratory disorder is related to 
military service, to include as secondary to Agent Orange 
exposure.  Medical diagnosis and causation involve questions 
that are beyond the range of common experience and common 
knowledge and require the special knowledge and experience of 
a trained physician.  As he is not a physician, 


the veteran's statements are not competent evidence that a 
currently diagnosed respiratory disorder is related to 
military service, to include as secondary to Agent Orange 
exposure.  Espiritu v. Derwinski, 2 Vet. App. 492, 495 
(1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  
Accordingly, the medical evidence of record does not show 
that a currently diagnosed respiratory disorder is related to 
military service, to include as secondary to Agent Orange 
exposure.  As such, service connection for a respiratory 
disorder is not warranted.

In reaching this decision, the Board considered the doctrine 
of reasonable doubt.  However, as the medical evidence of 
record does not show that a currently diagnosed respiratory 
disorder is related to military service, to include as 
secondary to Agent Orange exposure, the doctrine is not for 
application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Special Monthly Compensation

Special Monthly Compensation is a special statutory award in 
addition to awards based on the schedular evaluations 
provided by the diagnostic codes in VA's SCHEDULE FOR RATING 
DISABILITIES.  38 C.F.R. Part 4 (2008).  If a veteran, as a 
result of a service-connected disability, has suffered the 
anatomical loss or loss of use of one or more creative 
organs, the veteran is entitled to special monthly 
compensation.  38 U.S.C.A. § 1114(k).  For VA purposes, loss 
of a male creative organ is shown by acquired absence of one 
or both testicles or absence of spermatozoa.  38 C.F.R. § 
3.350(a).

In a February 2000 private medical report, the veteran 
reported that "he has had erectile dysfunction."  After 
physical examination, the diagnosis was erectile dysfunction.

A June 2002 VA diabetes mellitus examination report stated 
that the veteran's claims file had been reviewed.  The 
veteran stated "that his sexual function is slow and he has 
occasionally used Viagra, but he is still functional."  On 
physical examination, no genital abnormalities were noted.

A February 2005 VA outpatient medical report gave a diagnosis 
of erectile dysfunction.  No complaints were noted and the 
examiner stated "try [V]iagra."

VA medical records show that the veteran was given a 
prescription for sildenafil citrate in April 2005.  The 
instruction was to take one tablet by mouth as needed on an 
empty stomach 1 hour prior to sexual activity.  The quantity 
was 4 pills for a 30 day period with 4 refills.  The report 
does not show that any of the refills were used, and the 
prescription was discontinued in April 2006.

The medical evidence of record does not show that the veteran 
experiences loss of use of a creative organ for VA purposes.  
While the medical evidence of record show that the veteran 
reported experiencing erectile dysfunction, it is 
intermittent and he still retains some normal sexual 
function.  In the June 2002 VA diabetes mellitus examination 
report, the veteran specifically stated that he was still 
sexually functional and his complaints were a "slow" sexual 
function and occasional use of Viagra.  Accordingly, the 
medical evidence of record does not show that the veteran had 
loss of use of a creative organ for VA purposes in June 2002.  
While the February 2005 VA outpatient medical report gave a 
diagnosis of erectile dysfunction, the treatment was simply 
"try Viagra."  This corresponds to an April 2005 
prescription for sildenafil citrate (also known as Viagra).  
However, the prescription was only for 4 pills and there is 
no medical evidence that the veteran used any of the refills 
or renewed the prescription after it expired.  

Accordingly, the medical evidence of record does not show 
that the veteran experiences loss of use of a creative organ 
for VA purposes.  As such, special monthly compensation due 
to loss of use of a creative organ is not warranted.

In reaching this decision, the Board considered the doctrine 
of reasonable doubt.  However, as the medical evidence of 
record does not show that the veteran experiences loss of use 
of a creative organ for VA purposes, the doctrine is not for 
application.  Gilbert, 1 Vet. App. 49.




ORDER

Service connection for a respiratory disorder is denied.

Special monthly compensation due to loss of use of a creative 
organ is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs