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