Citation Nr: 1102016 Decision Date: 01/18/11 Archive Date: 01/26/11 DOCKET NO. 05-37 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a disability manifested by sexual/erectile dysfunction and/or impotence, to include as secondary to service-connected PTSD. 3. Entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran had active service from February 1970 to October 1971. He received the Combat Infantryman Badge. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Lincoln, Nebraska Regional Office (RO) of the Department of Veterans Affairs (VA) that, in pertinent part, granted service connection for PTSD and assigned a 30 percent evaluation, effective January 20, 2005. The matters also come on appeal from a September 2005 rating decision, in which the RO denied service connection for gastroesophageal reflux disease and a sexual dysfunction secondary to PTSD. This case was previously before the Board on March 10, 2008, at which time the Board denied the pertinent claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 30, 2010 Memorandum Decision, with Judgment entered, May 24, 2010, the Court vacated that portion of the March 2008 Board decision which denied entitlement to service connection for GERD and sexual dysfunction, and a higher initial evaluation for PTSD, and remanded those issues to the Board for readjudication in accordance with the directives in the Court's decision. The Court otherwise affirmed the remaining issues in the Board's March 10, 2008 decision. The Board notes that additional evidence was received into the record in November 2010, following certification of the appeal to the Board, which has not been considered by the RO. There was no waiver of RO consideration of the additional evidence. However, inasmuch as the additional evidence is duplicative and cumulative of evidence and argument already of record, the Veteran is not prejudiced by the Board's consideration of the appeal at this time. Bernard v. Brown, 4 Vet.App. 384 (1993). The issue of entitlement to an initial evaluation in excess of 30 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A gastrointestinal disability, to include GERD, was initially demonstrated many years after service, and has not been shown by competent clinical, or competent and credible lay, evidence to be causally related to the Veteran's active service. 2. Chronic impotence/erectile dysfunction has been shown by competent clinical evidence to be causally related to service- connected PTSD. CONCLUSIONS OF LAW 1. A gastrointestinal disability, to include GERD, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). 2. Chronic impotence/erectile dysfunction is proximately due to service-connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Because the Court's decision is premised on the five elements of a service connection claim, it is the consensus opinion within the VA that the analysis employed can be analogously applied to any matter that involves any one of the five elements of a "service connection" claim, to include an increased rating claim. With respect to the Veteran's service connection claims, VA satisfied its duty to notify by means of March 2005 and March 2006 letters from the agency of original jurisdiction (AOJ) to the Veteran that informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence, requested that he provide any evidence in his possession that pertains to his claims, and provided him with notice of the type of evidence necessary to establish a disability rating and/or effective date in the event of award of any benefit sought. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, additional VCAA notice was issued after the AOJ decision that is the basis of this appeal. Here, the Board finds that any defect with respect to the timing of the VCAA notice was harmless error. The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Therefore, although complete notice was not provided to the appellant until after the initial adjudication, the appeal was readjudicated thereafter, and the appellant has not been prejudiced thereby. The actions taken by VA have essentially cured the error in the timing of notice. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal The record reflects that the Veteran has been afforded VA examinations. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations and opinions obtained were more than adequate because the examiners elicited substantial information regarding the Veteran's medical history and symptoms and completed objective examinations of him. Rationale was provided for the opinions proffered. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Thus, based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claims. Essentially, all available evidence that could substantiate the claims has been obtained Legal Criteria and Analysis The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to each claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Present disability resulting from disease or injury in service is required to establish entitlement to service connection. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997). To establish service connection for a disability, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Regulations also provide that 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) (2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310 (2010). Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 488 (1995). The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. Given what appear to be substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. 1. Gastrointestinal Disability The Veteran asserts that service connection is warranted for a gastrointestinal disability, to include as secondary to service- connected PTSD. With respect to a current disability, the record reflects that the Veteran has been diagnosed with gastrointestinal esophageal reflux disease (GERD) since 2005. With regard to an in-service injury or disease, the Veteran's service treatment records are silent for complaints of, or treatment for GERD or any other gastrointestinal disability. Significantly, the Veteran denied a history of frequent indigestion or stomach, liver, or intestinal trouble on his September 1971 separation examination and the examiner from such examination reported that the Veteran's abdomen and viscera were normal on physical examination. Nevertheless, the Veteran, during his August 2005 VA examination, reported that he had a sensitive stomach when he was serving in the Republic of Vietnam and that he experienced significant amounts of heartburn, but that he did not seek medical care because he did not want to interfere with his early release from service and as a result he never mentioned his symptoms while he was on active duty. The Veteran's spouse was in attendance at the August 2005 VA examination, and corroborated the initial symptoms onset. Specifically, the Veteran's spouse corroborated that as soon as the Veteran returned from Vietnam, she was aware of his heartburn and sensitive gastrointestinal system. It was noted that the Veteran and his spouse were married upon his return from service, and that they had remained married to date. The examiner found that the Veteran and his wife were credible and reliable historians. The record establishes that the first documented clinical diagnosis of a gastrointestinal disability was in 1999, many years after the veteran's separation from service. In adjudicating a claim for service connection, including as to continuity of symptomatology, the Board must assess the competence and credibility of the evidence, to include lay statements of the veteran and his spouse. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Board finds that Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experienced gastrointestinal symptomatology during and since service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Likewise, the Veteran's spouse is competent to report that she was aware of the Veteran's gastrointestinal symptomatology when he returned from Vietnam, as the record establishes that they were married 13 months after the Veteran's separation from service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing loud noises in service and witnessing events). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). At the outset, the Board also notes that although the August 2005 examiner found that the Veteran and his spouse were reliable historians, the Board must make its own finding as to credibility of the statements of the Veteran and his spouse. Although the August 2005 VA examination report shows that the Veteran reported having a sensitive stomach and significant amounts of heartburn while serving in Vietnam, he himself indicated that he never sought treatment for his conditions. Additionally, the Board notes that the record, including his service treatment records, is devoid of objective evidence of a gastrointestinal disability until 1999, 28 years after the Veteran reported that his gastrointestinal symptomatology began occurring. Moreover, although the August 2005 VA examination report shows that the Veteran indicated that he had his first upper GI series after he returned home from the military, the record does not contain a copy of such test results or any other information pertaining to it. Further, other than the April 2005 upper gastrointestinal series report that the Veteran reportedly took to his August 2005 VA examination, the record also does not contain any information pertaining the other two or three upper GI series tests that the Veteran reported having undergone over the years. Further, the Board acknowledges that the Veteran has reported that he did not seek medical care for his stomach problems while on active duty because he did not want to interfere with his early release from service. Rather, such examination report shows that the Veteran denied a history frequent indigestion or stomach liver or intestinal trouble and the examining clinician reported that abdomen and viscera were normal. As such, the record reflects that the Veteran has admitted he was less than credible in reporting his medical history on separation from service, for the purpose of a personal goal. As such, it is reasonable for the Board to assume that, likewise, his and his spouse's current unsupported conflicting statements as to onset, made in conjunction with the Veteran's claim for compensation benefits, are also other than credible. In view of the foregoing, the Board finds that any current assertions by the Veteran or his spouse as to continuity of symptomatology of his gastrointestinal disability since service to be less than credible. As to the etiology of the Veteran's current gastrointestinal disability, the Board observes that the examiner from the Veteran's August 2005 VA examination, based on the statements of the Veteran and his wife and the fact that he believed that the Veteran and his spouse were reliable historians, opined that "it is not unreasonable to assume, that the Veteran's gastroesophageal reflux disease had its onset while he was on active duty." However, the Board finds that such opinion is not competent, probative medical evidence because it is based on an unsupported factual premise and is without a factual predicate in the record. See LeShore v. Brown, 8 Vet. App. 406 (1995); See also Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As discussed above, the Board notes that the Veteran is competent to testify that he experienced gastrointestinal symptomology in service. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Nevertheless, the fact remains that that neither the Veteran's contemporaneous service treatment records nor any other evidence of record corroborates his or his spouse's less than credible statements as to the continuity of symptomatology of his gastrointestinal disability. As noted above, the Veteran, on his separation examination, specifically denied a history of indigestion or stomach, liver, or intestinal trouble and the record shows that he has expressly indicated that he did not seek treatment for his gastrointestinal symptomatology in service. For that reason, the Board will not afford the August 2005 examiner's association of the Veteran's current gastrointestinal symptomology with undocumented in-service gastrointestinal symptomology any probative weight. Therefore, in the absence of any documented competent medical evidence that demonstrates that the Veteran's gastrointestinal disability is related service, or credible lay evidence of continuity of symptomatology of his gastrointestinal disability since service, the Board finds that the initial demonstration of a chronic gastrointestinal disability decades after service is too remote from service to be reasonably related to service. The Board finds that the negative evidence of record is of greater probative value than the Veteran's less than credible statements in support of his claim. Therefore, the Board finds that the preponderance of the evidence is against a grant of service connection on a direct incurrence basis for the Veteran's current gastrointestinal disability. The Board acknowledges the Veteran's contentions that his current gastrointestinal disability is related to his service-connected PTSD. In order to establish service connection on a secondary basis the evidence must show (1) that a current disability exists and (2) that the current disability is proximately due to, the result of, or aggravated by, a service-connected disability. The record reflects that the Veteran is currently service connected for PTSD. As discussed above, the record establishes that the Veteran has been diagnosed with GERD. However, the medical evidence of record does not establish that such condition is proximately due to, the result of, or aggravated by the Veteran's service-connected PTSD. In fact, the examiner from the Veteran's August 2005 VA examination, opined that: Post-traumatic stress disorder, a mental health diagnosis, does not cause gastroesophageal reflux disease. The medical examiner's at this facility are in consensus with this, based primarily [on the fact] that there is no medical literature or evidence indicating that post-traumatic stress disorder causes this type of condition. There is no competent clinical evidence of record which asserts that symptoms of the service-connected PTSD aggravates current gastrointestinal disability, or that medication taken for PTSD proximately causes, results in, or chronically aggravates current gastrointestinal disability. Thus, the preponderance of the evidence is against a grant of service connection on a secondary basis. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a gastrointestinal disability, to include as secondary to service-connected PTSD, and the claim must be denied. 2. Sexual/Erectile Dysfunction and/or Impotence, to include as secondary to service-connected PTSD. The Veteran asserts that service connection is warranted for sexual dysfunction, to include as secondary to his service- connected PTSD. In this case, the Veteran's original claim, Notice of Disagreement and Substantive Appeal make it clear that he contends that his sexual dysfunction is due to his service- connected PTSD. He has not contended, and the evidence does not suggest, that his sexual dysfunction had its onset during or as a result of service, or that it may be so presumed. When neither the veteran nor the record raises the theory of entitlement to service connection on a direct basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). In order to establish service connection on a secondary basis the evidence must show (1) that a current disability exists and (2) that the current disability is proximately due to, the result of, or aggravated by, a service-connected disability. As noted above, the record demonstrates that the Veteran is service-connected for PTSD. With respect to a current disability, post service treatment records show that the Veteran has been diagnosed with erectile/sexual dysfunction since 1997. The record shows that the Veteran has been prescribed Viagra, Alprazolam (Xanax), and Clonazepam (Klonopin) to treat such condition. With respect to whether the Veteran's sexual dysfunction is related to his service-connected PTSD, the examiner from the August 2005 VA examination opined that, "there is no evidence in the literature to establish a cause and effect relationship of PTSD to sexual dysfunction." However, the clinical evidence of record does demonstrate that the Veteran's sexual dysfunction is due to the medications, specifically the Alprazolam (Xanax) and Clonazepam (Klonopin), which are used to treat his PTSD. In this regard, in an August 2005 letter, one of the Veteran's private treating physicians's Dr. D. J. P., indicated that his notes from 1998 and 1999 supported a diagnosis of PTSD and that during that time it was noted that the Veteran had poor sex drive and erectile dysfunction, which was felt to be secondary to medications. Likewise, the examiner from the Veteran's August 2005 mental disorders examination, opined that it was as likely as not that the medications (including Xanax and Klonopin) used to treat the Veteran's PTSD have caused medication induced sexual dysfunction with impaired desire and arousal. In reaching this rationale, the examiner cited numerous medical studies/articles that specifically addressed the correlation between sexual dysfunction and the particular medications that the Veteran uses to treat his PTSD. In weighing the clinical evidence of record the Board finds that the August 2005 VA opinion, in which the examiner provided a detailed and well-supported rationale for his conclusion, to be competent, highly probative medical evidence with respect to whether the medications that the Veteran uses to treat his PTSD causes his sexual/erectile dysfunction. As such, with resolution of doubt in the Veteran's favor, the Board finds that the evidence of record supports service connection for chronic impotence/erectile dysfunction as secondary to service-connected PTSD. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010). ORDER Entitlement to service connection for a gastrointestinal disability, is denied. Entitlement to service connection for chronic impotence/erectile dysfunction, is granted. (CONTINUED ON NEXT PAGE) REMAND With respect to the Veteran's claim for an initial evaluation in excess of 30 percent for his service-connected PTSD, the Board notes that the Court has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480. 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the record reflects that the Veteran was last provided a VA examination for such disability in August 2005. Additionally, although the record contains VA outpatient mental health records, such records are also dated no later than 2006. Therefore, the Board also finds that more current VA outpatient mental health records, if available, and a new VA examination, are necessary to determine the current nature and extent of the Veteran's service- connected PTSD. Such information would be useful in the de novo adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he furnish the names, addresses, and dates of treatment of all medical providers from whom he has received treatment for his PTSD since January 2005. After securing the necessary authorizations for release of this information, seek to obtain copies of all treatment records referred to by the Veteran, not already of record, including any ongoing VA treatment records. 2. After completion of the above, including affording an appropriate period for response by the Veteran and the identified medical providers, the Veteran should be afforded a VA examination by the appropriate examiner(s), to determine the current severity of his service-connected PTSD. The Veteran's claims file should be made available to the examiner and must be reviewed in conjunction with the examination; such review must be noted in the examination report. All necessary tests should be performed. The examiner must provide a complete rationale for any opinion expressed. 3. Thereafter, readjudicate the issue on appeal of entitlement to an initial evaluation in excess of 30 percent for PTSD. If the benefit sought is not granted, the Veteran and his representative should be issued a supplemental statement of the case, and afforded the appropriate period to respond. Thereafter, the claim should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs