Citation Nr: 0812260 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-21 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased evaluation for a right inguinal hernia, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for erectile dysfunction, including as secondary to the service-connected right inguinal hernia. 3. Entitlement to service connection for a nervous condition, including as secondary to the service-connected right inguinal hernia. ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from March 1974 until December 1982 and from March 1995 until August 2002 and service with the National Guard of Puerto Rico from June 1983 until August 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issues of entitlement to service connection for depression and entitlement to an increased evaluation for a right inguinal hernia are being remanded and are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Erectile dysfunction was not incurred in or aggravated by active service. 2. The right inguinal hernia did not cause or make worse the erectile dysfunction. CONCLUSION OF LAW The criteria for a grant of service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran dated in March 2004 that fully addressed all notice elements of Quartuccio v. Principi, 16 Vet. App. 183 (2002). Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the veteran's claim, such error was harmless given that service connection is being denied for erectile dysfunction, and hence no rating or effective date will be assigned with respect to this claimed condition. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service medical records, VA outpatient treatment records and private medical records. The veteran submitted private medical records in support of his claim. Additionally, the veteran was afforded VA examinations in connection with his claim. The Board notes the veteran's Social Security file has not yet been obtained and as such has remanded some of the veteran's claims. However, the Social Security Administration Notice of Decision reflected the veteran was in receipt of benefits for an emotional condition and back and neck pain. As such, the absence of the Social Security Administration file is not prejudicial and the Board will proceed with the adjudication of the claim for entitlement to service connection for erectile dysfunction. Significantly, the veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Merits of the Claims The veteran seeks service connection for erectile dysfunction, including as secondary to the service-connected hernia. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The veteran has a current disability of erectile dysfunction as illustrated by an August 2004 private medical record. The remaining question, therefore, is whether there is evidence of an inservice occurrence of an injury or disease and medical evidence of a nexus or relationship between the current disability and the inservice disease or injury. Service medical records, however, fail to reflect any complaints, treatment or diagnoses of erectile dysfunction. In fact examinations dated in June 1983, June 1987, April 1991, May 1992, October 1994 and August 1999 all described the genitourinary system as normal. Significantly, the August 2002 examination conducted in connection with the veteran's retirement from service described a reducible right inguinal hernia as the only abnormality of the genitalia. Nor did the veteran report a history of erectile dysfunction on the August 2002 report of medical history. More significantly, there is no competent medical evidence of a nexus. By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). None of the medical records relate the erectile dysfunction to any event or incident during service. The veteran, however, contends that his service-connected right inguinal hernia caused or aggravated his erectile dysfunction. The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a) (2003). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. As noted above, the veteran has a current disability and a service-connected disability. However, there is no evidence illustrating a nexus between the current erectile dysfunction and the service-connected hernia. The claims file was reviewed by a VA examiner in July 2004 to assess whether or not there was a relationship between the conditions. The examiner reviewed the claims file and electronic VA outpatient treatment records, and explained there was no relationship between the right inguinal hernia repair and the erectile dysfunction. The veteran was advised of the need to submit medical evidence to demonstrate a nexus between a current disability and a service-connected condition in a March 2004 letter from the RO to him, but he has failed to do so. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the veteran was clearly advised in a letter of the need to submit medical evidence of a relationship. While the veteran is of the opinion that his erectile dysfunction is related to service, as a lay person, the veteran is not competent to offer an opinion that requires specialized training, such as the etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the preponderance of the evidence is against the veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for erectile dysfunction is denied. REMAND In Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held in part that VA's duty to notify a claimant seeking an increased evaluation included advising the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Although a notification letter dated in March 2004 was issued in this matter, it does not comply with the Vazquez-Flores ruling. The veteran was not notified of any of the information required by Vazquez-Flores. Additionally, the veteran submitted a November 2006 Notice of Award from the Social Security Administration reflecting he is in receipt of disability benefits for an emotional condition. However, complete copies of the medical records upon which any disability decision was based, as well as any agency decision with the associated List of Exhibits, have not been made part of the claims file. VA's duty to assist extends to obtaining records from the Social Security Administration. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will advise the veteran of what evidence would substantiate his claim for an increased evaluation for a right inguinal hernia. Apart from other requirements applicable under the Veterans Claims Assistance Act (VCAA), the RO/AMC will comply with the Vazquez-Flores ruling, and advise the veteran to submit evidence that his conditions have worsened, including the effect an increased worsening of the conditions has on employment and daily life, and provide notice of the criteria necessary under the appropriate Diagnostic Codes to establish entitlement to an increased rating. The RO/AMC should also ensure compliance with Dingess v. Nicholson, 19 Vet. App. 473 (2006) and advise the claimant of how disability ratings and effective dates are assigned. In so doing, the RO/AMC will comply with any directives of the Veterans Benefits Administration. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). 2. The RO/AMC should obtain the veteran's Social Security Administration disability file, including any pertinent claim for benefits, the Social Security Administration decision, any List of Exhibits associated with the decision and copies of all of the medical records upon which any decision concerning the veteran's entitlement to benefits was based. 3. The RO/AMC should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. When the development requested has been completed, the claims should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs