Citation Nr: 0935578 Decision Date: 09/21/09 Archive Date: 10/02/09 DOCKET NO. 05-11 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for sexual dysfunction, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to November 1996. He served in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO denied service connection for sexual dysfunction. The Veteran timely appealed the RO's September 2004 rating action to the Board. In May 2008, the Board, in part, remanded the instant claim to the RO for additional development. The requested development has been completed and the case has returned to the Board for appellate review. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The competent medical evidence of record reflects that the Veteran has been diagnosed with erectile dysfunction. 3. The preponderance of the competent medical evidence of record does not link the Veteran's erectile dysfunction to any incident of active military service. CONCLUSION OF LAW Erectile dysfunction, to include as due to an undiagnosed illness, was not incurred in or aggravated by active service. 38 U.S.CA. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 CF.R. §§ 3.303, 3.317 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002 & Supp. 2008 ); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. Proper notification must also invite the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). See, also, the United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120- 21 (2004). In Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents (e.g., statements or supplemental statements of the case), was required. The Federal Circuit further held that such a letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. Id. With regard to the service connection issue on appeal, VA provided the appellant with pre-adjudication notice on the Pelegrini II VCAA elements in an April 2004 letter. The letter informed the appellant to let VA know of any evidence he thought would support his claim for service connection for sexual dysfunction on a direct service connection basis, told him that it was his responsibility to make sure that VA received all requested records not in the possession of a Federal entity, and told him where to send what "we need." As to the claim for service connection for sexual dysfunction as due to an undiagnosed illness, although an April 2004 VCAA letter included an attachment for Persian Gulf claims, the Veteran was not provided notice of what was necessary to substantiate the claim. Although this notice error is presumed prejudicial, the Board may proceed in deciding the claim for service connection for sexual dysfunction, to include as due to an undiagnosed illness, as there is a diagnosed illness associated with the claim (e.g., erectile dysfunction) and, as such, the benefit could not have been awarded as due to an undiagnosed illness as a matter of law. See Sabonis v. Brown. 8 Vet. App. 426 (1994). In addition, the Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant was informed of the Dingess elements in a June 2006 letter. Id. In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The appellant was provided pre-adjudication VCAA notice via an April 2004 letter. Id. The RO has taken appropriate action to comply with the duty to assist the Veteran with the development of the instant claim. The record includes service medical records, VA compensation and pension examinations, VA outpatient treatment records, and private treatment records. Statements from the Veteran were also associated with the claims folder. There are no known additional records to obtain. In addition, pursuant to the Board's May 2008 remand directives, VA examined the Veteran in September 2008 to determine the etiological relationship, if any, between any currently diagnosed disability manifested by sexual dysfunction and military service. A copy of the September 2008 VA examination report is contained in the claims folder. In sum, the record reflects that the facts pertinent to the claim for service connection for sexual dysfunction, to include as due to an undiagnosed illness has been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. Accordingly, the Board will adjudicate the claim. II. Merits Analysis (i) Undiagnosed Illness The Veteran claims service connection for a disability manifested by sexual dysfunction during service. The Veteran served in the Persian Gulf. Service connection may be considered under applicable presumptions. However, since there is a diagnosis for the stated disorder (e.g., erectile dysfunction), service connection for this disorder as an undiagnosed illnesses will be denied. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (Both for the general proposition that in claims involving presumptive service connection, the Board must also examine the evidence of record to ascertain if there is any other basis upon which to develop or grant the claim, including direct service connection) see Bingham v. Principi, 421 F.3d 1346 (Fed. Cir. 2005); Roebuck v. Nicholson. 20 Vet. App. 307, 312-313 (2006). Under the provisions of specific legislation enacted to assist Veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). The term "qualifying chronic disability" means a chronic disability resulting from an undiagnosed illness; a medically unexplained chronic multisymptorn illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined as a cluster of signs or symptoms; or, any diagnosed illness that VA determines in regulations warrants a presumption of service-connected. 38 U.S.C.A. § 1117(a)(2). Signs or symptoms that may be a manifestation of an undiagnosed illness or a chronic multisymptom illness include: (1) fatigue, (2) unexplained rashes or other dermatological signs or symptoms, (3) headache, (4) muscle pain, (5) joint pain, (6) neurological signs and symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the upper or lower respiratory system, (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, and (13) menstrual disorders. 38 U.S.C.A. § 1117(g). Among the requirements for service connection for a disability due to an undiagnosed illness is that such disability, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia theater of operations during the Persian Gulf War. See 38 C.F.R. § 3.317(c). If signs or symptoms have been attributed to a known clinical diagnosis in the particular Veteran's case being considered, service connection may not be provided under the specific provisions pertaining to Persian Gulf Veterans. See VAOPGCPREC 8-98 at paras. 4-5 (Aug. 3, 1998). The term "Persian Gulf Veteran" means a Veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317( d)(2). The Veteran's DD 214 shows that he served on active duty from October 1988 to November 1996. He also received a Southwest Asia Service Medal and a Kuwait Liberation Medal. These awards are indicative of service during the Persian Gulf War. The identification of a diagnosis, per se, renders consideration of an "undiagnosed illness" under statute and regulation inappropriate. See VAOPGCPREC 8-98 (In addressing the question of whether VA may pay compensation under 38 U.S.C.A. § 1117 for disability manifested by symptoms that either elude diagnosis or are attributed to a poorly- defined disease such as chronic fatigue syndrome or fibromyalgia, it is held that section 1117(a) authorizes service connection on a presumptive basis only for disability arising in Persian Gulf Veterans due to "undiagnosed illness" and may not be construed to authorize presumptive service connection for any diagnosed illness, regardless of whether the diagnosis may be characterized as poorly defined.). Here, the medical evidence reflects that the Veteran has been diagnosed with erectile dysfunction. (See September 2008 VA examination report). This is a clinical diagnosis in connection with the Veteran's claimed disorder. Under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), in order for the Veteran to warrant service connection, the Veteran's disorder may not be attributable to a known diagnosis. Consequently, service connection for sexual dysfunction, based on an undiagnosed illnesses, is not warranted. (ii) Direct Service Connection The Veteran argues that his sexual dysfunction, currently diagnosed as erectile dysfunction, is linked to his period of military service. Because there is no competent evidence indicating a nexus between his currently diagnosed erectile dysfunction and his period of military service, the appeal will be denied. VA compensation is paid for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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) (2008). Service treatment records are wholly devoid of any subjective complaints or clinical findings referable to any genitourinary pathology, to include, but not limited to, sexually transmitted diseases. On an October 1996 service separation examination report, the Veteran's genitourinary system was evaluated as "normal." On a Report of Medical History, also dated in October 1996, the Veteran denied having venereal diseases, such as syphilis and gonorrhea. Post-service VA and private medical evidence reflects that in April 2005, the Veteran was seen at a VA outpatient clinic with complaints of having difficulty maintaining an erection. He was denied being prescribed the medication, Viagra, because of his cardiac status. (See April 2005 VA outpatient reports). The Veteran was diagnosed with erectile dysfunction in September 2008. (See September 2008 VA examination report). During the September 2008 VA examination, the Veteran reported that he had developed erectile dysfunction in 2002, shortly after he was diagnosed with hypertension. The VA examiner opined, after a claims file review and physical evaluation of the Veteran, that it was "As likely as not" that his erectile dysfunction related to his cardiovascular medications. The VA examiner supported his opinion by stating that the medication, Aldactone, could cause erectile dysfunction and that the Veteran had been prescribed this medication since the onset of his cardiomyopathy, a disability for which service connection has not been established. The September 2008 VA examiner also determined that the Veteran's other symptomatic non-service-connected disorders, such as cardiomyopathy and chronic obstructive pulmonary disease (COPD), might also be contributing factors to his erectile dysfunction. In this regard, the VA examiner maintained that patients who are unhealthy from heart disease and COPD could have difficulty with erectile dysfunction simply due to a lack of energy. The VA examiner was unable to find any incident of service that played a role in the Veteran's development of erectile dysfunction. There is no other medical opinion of record, VA or private, that contradicts the September 2008 VA examiner's opinion. A thorough review of the record reveals that there is no evidence of symptoms of any sexual dysfunction during military service. There also is no evidence of any sexual dysfunction until almost a decade after the Veteran's separation from service in 1996. The absence of any clinical evidence of the claimed disability for almost a decade after service discharge constitutes negative evidence against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the competent medical evidence clearly demonstrates that diagnosed erectile dysfunction is not related to military service, but to medications, as well as lethargy, stemming from the Veteran's non-service-connected cardiomyopathy and COPD. Based on the foregoing, service connection for erectile dysfunction is not warranted. The Board observes the Veteran's assertions that he currently has sexual dysfunction as a result of having served on active military service, to include as due to an undiagnosed illness. The Court has held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the Court has also held that lay persons, such as the Veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Here, the Veteran is capable of reporting that he had various physical maladies during service. He is not, however, competent (i.e., qualified professional) to attribute these problems to a period of military service. In conclusion, the preponderance of the evidence is against a finding that the Veteran's currently diagnosed erectile dysfunction is related to his period of military service. ORDER Service connection for erectile dysfunction, to include as due to an undiagnosed illness, is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs