Citation Nr: 1119461 Decision Date: 05/19/11 Archive Date: 05/27/11 DOCKET NO. 04-18 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to July 1969. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. The RO in Milwaukee, Wisconsin currently has jurisdiction over the matter. In May 2007 a videoconference hearing was held at the RO before the undersigned Acting Veterans Law Judge. A transcript of that proceeding is of record. In August 2010 the Board remanded this claim for additional development. That development having been completed, the claims have been returned to the Board and are now ready for appellate disposition. FINDING OF FACT The Veteran's erectile dysfunction is not shown to be causally or etiologically related to active service or any service-connected disability. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran in this case seeks service connection for erectile dysfunction. He claims this condition is related to the medications prescribed for his service-connected PTSD. The Board will first consider whether the Veteran is entitled to direct service connection. The Board notes that, in September 2010 correspondence, for example, the Veteran specifically indicates he is seeking secondary service connection, and he stated that the disorder addressed in this decision did not arise in service. The Board acknowledges the Veteran's statements that he is not seeking direct service connection. The Veteran is hereby advised that, even though he did not seek direct service connection and has specifically declined to do so, the Board is nonetheless obligated under controlling case law, to consider all pertinent theories of service connection, and must address direct service connection in this decision. Generally, to prove direct service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Here, the Veteran has been diagnosed with erectile dysfunction documented, for example, on VA examination in September 2010. As such, the first element of direct service connection has been satisfied. However, the Veteran's service treatment records are silent for documentation of erectile dysfunction. The records reveal no complaints or treatment related to the Veteran's genitourinary functioning, and his separation examination was normal in this regard. In addition, there are no nexus opinions of record linking the Veteran's erectile dysfunction to service. As such, service connection on a direct basis is not warranted. The Board notes that while a VA examination has been conducted, a medical opinion on the issue of direct service connection has not been obtained. However, the Board finds that the evidence, which reveals that the Veteran did not have erectile dysfunction during service and does not reflect competent evidence showing a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claims. See 38 C.F.R. § 3.159(c)(4). As service and post-service treatment records provide no basis to grant this claim, and in fact provide evidence against this claim, the Board finds no basis for a VA examination or medical opinion to be obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case. The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the outcome of these claims hinge on what occurred, or more precisely, what did not occur, during service. In the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's claimed disability and his military service would necessarily be based solely on the Veteran's uncorroborated assertions regarding what occurred in service. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 61 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected.) The holding in Charles was clearly predicated on the existence of evidence of both in-service incurrence and of a current diagnosis. Simply stated, referral of these claims for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See also, 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2010). Turning to the issue of secondary service connection, in order to prevail under this theory of entitlement there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2010). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to what the competent evidence establishes as the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the medical evidence establishing the current level of severity of the nonservice- connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular nonservice- connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). It appears as though the new regulatory amendment poses a new restriction on claimants. Nonetheless, 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 revision, as this version is more favorable to the Veteran. See generally VAOGCPREC 7-03 and VAOPGCPREC 3-00. Here, there is no dispute that the Veteran is service-connected for his PTSD and carries a diagnosis of erectile dysfunction. However, the evidence is not in equipoise as to whether the Veteran's service-connected disability caused or aggravated his erectile dysfunction. In support of the Veteran's claim, the record contains an October 2010 letter from the Veteran's treating VA physician, J.S., M.D. In the letter, Dr. S. states, "sexual dysfunction is common to most of the medications we prescribe in Psychiatry. This is certainly true in the case of his current meds (Risperidone, Sertraline). Based on history, the ED [erectile dysfunction] has been occurring since starting on meds and has become progressively worse." The evidence against the claim includes a VA examination report of September 2010. In the report, the examiner noted that on June 3, 2003, the Veteran was first prescribed psychiatric medication, including Risperidone, Sertraline, and Seroquel. The examiner noted that as of this date, the Veteran was already experiencing erectile dysfunction and had been using Viagra, which was continued by the treating physician. As the Veteran's erectile dysfunction "predated the onset of the medications for PTSD and major depressive disorder," the examiner concluded that the Veteran's erectile dysfunction is "less likely than not" caused by his service-connected psychiatric disability. The examiner further explained, "as he already had ED requiring treatment prior to his mental health diagnosis this leads me to believe that his age and obesity and other factors were more likely the major contributors to his ED and worsening of this condition is the natural course of ED. Therefore, it is my opinion that his ED was less likely than not permanently aggravated by his SC mental health conditions (including PTSD)." The Board finds the September 2010 VA examiner's opinion more probative because a review of the claims file does, in fact, document the Veteran's initial prescription for Sertraline, Risperidone, and Seroquel on June 3, 2003. The VA treatment note also states, "he has been using Viagra and this will be continued." A review of prior medical records confirm that the Veteran had not been prescribed psychiatric medication prior to this date. As such, the opinion of Dr. S. is based on an inaccurate factual predicate. See Black v. Brown, 5 Vet. App. 177, 180 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding medical opinions have no probative value when they are based on an inaccurate factual predicate, such as the Veteran's self-reported and inaccurate history). As such, the Board finds the evidence is not in equipoise on the issue of secondary service connection. In reaching this decision, the Board notes that the Veteran has contended on his own behalf that his current erectile dysfunction is related to his PTSD. As a lay person, the Veteran is competent to describe symptoms he experiences, to include erectile dysfunction. However, the Veteran is not competent or qualified, as a layperson, to render an opinion concerning medical causation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu, supra. In this regard, the Veteran, as a layperson, lacks the competency to opine on the etiological cause of his erectile dysfunction disorder. Further, while the Veteran contends, as documented in the September 2010 report for example, that his erectile dysfunction started "from the day" he began psychiatric medications, this is contradicted by the medical record. Clinical records dated in 2003, as noted above, reflect that the Veteran was using medication to treat erectile dysfunction before he started treatment with medications for PTSD. Similarly, a March 2004 VA treatment note, for example, reflects that the Veteran reported having no side effects from his medications. For all of these reasons, secondary service connection for this disorder is not warranted. Finally, the Board notes that service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition); or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the Veteran's present condition. 38 C.F.R. § 3.303; see Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Here, in a September 2010 letter for example, the Veteran specifically states that he does not contend his erectile dysfunction has existed from military service to the present time. Further, as discussed above, erectile dysfunction was not noted during active duty. As there is no competent evidence contemporaneous with his period of duty, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. Savage, 10 Vet. App. at 495-96. Additionally, the clinical evidence establishes that medications used to treat service-connected PTSD do not aggravate the severity of erectile dysfunction, since aggravation, as defined for VA purposes, does not include temporary increase in symptoms or intermittent flare-ups of a preexisting injury or disease , unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, the medical evidence establishes that the effects on erectile function of the medications used to treat PTSD should cease if the Veteran stops using the medications, so any increase in symptomatology of erectile dysfunction due to the medications is medically considered temporary. Thus, the preponderance of the competent evidence establishes that the medications used to treat erectile dysfunction do not aggravate the symptoms, as defined for compensation benefits purposes. As the evidence is not in equipoise, the benefit of the doubt rule is not for application. For all of the above reasons, the Veteran's claim for service connection for erectile dysfunction must be denied. Notice and Assistance Under applicable law, 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. 2010); 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); 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). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in November 2010 and February 2005 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. Additionally, the letter of September 2010 and a separate letter of March 2006 provided the appellant with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. The Veteran's initial duty-to-assist letter was not provided before the adjudication of his claim. However, after he was provided the letters he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided this notice, the Veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service treatment records and post service treatment records have been obtained. He has had a personal hearing before the Board. He has been afforded a VA examination. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. ORDER Service connection for erectile dysfunction is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs