Citation Nr: 1303909 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 05-26 709 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from April 1974 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2008 and June 2010, the Board remanded various issues, to include a claim of service connection for erectile dysfunction, to the agency of original jurisdiction (AOJ) for further evidentiary development. In May 2012, the Board denied higher ratings for service-connected right epididymitis with painful testicle, service-connected left varicocele, and service-connected skin disability of the scrotum. It remanded the claim of service connection for erectile dysfunction for additional development. Following the development requested, the Veteran's claim was readjudicated and the AOJ continued its previous denial. It issued a supplemental statement of the case (SSOC) in November 2012. The case has since been returned to the Board for further appellate action. FINDINGS OF FACT 1. Erectile dysfunction was first diagnosed many years after the Veteran's active military service and is not related to his period of service. 2. Erectile dysfunction has not been caused or made chronically worse by service-connected disability. CONCLUSION OF LAW The Veteran does not have erectile dysfunction that is the result of disease or injury incurred in or aggravated during active military service; erectile dysfunction is not proximately due to, or the result of, service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised during the pendency of the appeal, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In the present case, the Board finds that all notification and development action needed to render a decision on the claim on appeal has been accomplished. Here, through March 2008 and May 2012 notice letters, the AOJ notified the Veteran of the legal criteria governing his claim and the evidence needed to substantiate his claim, both on a direct and secondary basis. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the AOJ notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the Veteran identify any medical providers from whom he wanted the AOJ to obtain and consider evidence. The AOJ also requested that the Veteran submit evidence in support of his claim. Additionally, in the March 2008 and May 2012 notice letters, the AOJ provided the Veteran notice regarding the assignment of effective dates and disability rating elements. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim-such as in a statement of the case (SOC) or SSOC, such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the present case, no VCAA notice was provided prior to the initial unfavorable January 2005 rating decision on appeal. Nonetheless, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. Additionally, although the complete notice may not have been provided until after the AOJ initially adjudicated the Veteran's claim, the claim was properly readjudicated in the November 2012 SSOC following the May 2012 notice letter. The May 2012 notice letter cured any previously inadequate notice letters. Id. Furthermore, the Board finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. The Veteran's service treatment records (STRs) have been obtained and associated with the claims file, as have the Veteran's VA treatment records dating back to January 1982. Additionally, the Veteran's Social Security Administration (SSA) records have also been obtained. The Veteran was provided VA examinations in connection with his claim, the reports of which are of record. Those examination reports contain sufficient evidence by which to decide the claim. The Veteran has not requested a hearing in his case. Therefore, there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. II. Analysis The Board notes initially that the RO has considered the Veteran's claim for service connection for erectile dysfunction as directly related to service and on a secondary basis to service-connected disability. The Veteran has appealed the RO's decision with respect to both theories of entitlement. The Board will likewise consider both theories of entitlement. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be (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, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that during the course of the present appeal, there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744- 47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2012)). The amendment merely sets a standard by which a claim of service connection based on aggravation is judged, but it applies only after it is determined that there has indeed been some worsening due to service-connected disability. In a June 2005 statement of the case, the Veteran was provided with the version of 38 C.F.R. § 3.310 in effect prior to the amendment. In a March 2010 SSOC, the Veteran was provided the amended version of 38 C.F.R. § 3.310. The new provision is more restrictive than the older version of 38 C.F.R. § 3.310 and is consequently less favorable to claimants. Hence, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. See 38 C.F.R. § 3.310 (2006). A review of the Veteran's STRs does not reflect complaints, diagnoses, or treatment for erectile dysfunction. While the post-service medical evidence demonstrates that the Veteran has erectile dysfunction, it does not otherwise reflect any nexus between erectile dysfunction and the Veteran's military service. Neither the Veteran nor his representative has presented nor alluded to the existence of any medical opinion establishing a relationship between erectile dysfunction and the Veteran's period of military service. Furthermore, in a report of March 2010 VA examination, the examiner commented that there was nothing to suggest that the Veteran's erectile dysfunction was related to his military service. He also commented that the likely etiology of the Veteran's erectile dysfunction was a 30-year smoking history as well as low testosterone. Hence, the record presents no basis for a grant of service connection for erectile dysfunction on a direct basis. The Veteran has also claimed that his erectile dysfunction is proximately due to or aggravated by service-connected conditions, in particular his right epididymitis with painful testicle and/or his left varicocele. Neither the Veteran nor his representative has presented nor alluded to the existence of any medical opinion establishing that the Veteran's erectile dysfunction is proximately due to, or the result of, service-connected disability. Otherwise, in a report of November 2004 VA examination, the Veteran was noted to report having suffered from erectile dysfunction for the past five to six years. He used Viagra and reported that he was not completely satisfied with the medication. On examination, both the Veteran's testicles were descended bilaterally, and there were no masses detected and no tenderness. The testicles were normal in size and consistency. A scrotal ultrasound noted as conducted in June 2004 revealed a small varicocele on the left, bilateral epididymal cysts, and bilateral hydroceles. In a report of March 2006 VA examination, the Veteran was noted to deny trauma or surgery affecting his penis or testicle. With regard to local and systemic disease affecting sexual function, the Veteran was noted as having a smoking history of 30 years with a history of alcohol and substance abuse. He was noted as having been abstinent the last six years. The Veteran reported no morning or evening erections, and his use of medications did not provide satisfactory erections for penetration. A laboratory value of 1.1 was noted for testosterone. The examiner, in particular, commented as follows, There is no relationship between erectile dysfunction and varicocele or epididymitis in this [V]eteran. [The Veteran] reports minimal symptoms related to these conditions. Prostate enlargement with abnormal digitial [sic] rectal exam will require further evaluation. Scheduled ultrasound evaluation. He has hypogonadism, morbid obestity [sic] which may contribute to erectile dysfunction. Also, in the above-noted report of March 2010 VA examination, it was reported that the Veteran's bilateral testicles were descended and normal in size, there was no scrotal edema, no evidence of palpable varicocele or inguinal hernia on either side, and a mildly tender right testicle. The examiner also commented, as noted above, that the likely etiology of the Veteran's erectile dysfunction was a 30-year smoking history and low testosterone. The examiner also commented, in particular, as follows, [The Veteran's] erectile dysfunction (ED) is a separate medical problem from the service[-]connected testicular conditions and there is no evidence to suggest that it is related to his military service. According to the records, the erectile dysfunction began more than 20 years after his discharge from the military. Therefore, the ED is less likely than not caused by, related to, or aggravated by [the Veteran's] service[-]connected epididymitis or varicocele. A review of the Veteran's VA medical records (to include those associated with his Virtual VA electronic file) does not reflect any report of a relationship between the Veteran's erectile dysfunction and any service-connected disability. Various treatment records reflect assessments of erectile dysfunction and the Veteran's use of medication to treat the disorder. Here, the Board finds the VA opinions concerning the Veteran's erectile dysfunction and its relationship to service or to service-connected disability to be persuasive. As noted above, neither the Veteran nor his representative has presented nor alluded to the existence of any medical opinion that contradicts the VA examinations' findings and conclusions. Additionally, the Board is aware that the Veteran is competent to report that he suffers from erectile dysfunction, and lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Board also notes that the question regarding a possible relationship between the Veteran's erectile dysfunction and military service or service-connected disability is complex in nature. Thus, the Veteran is not competent to relate any current erectile dysfunction to his period of service or to service-connected disability, as he is not shown to have the specialized medical knowledge, training, or experience to provide such evidence. See e.g., Jones v. West, 12 Vet. App. 460, 465 (1999); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992); 38 C.F.R. § 3.159(a)(1). Accordingly, based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for erectile dysfunction. In this regard, competent medical evidence does not relate the Veteran's erectile dysfunction to his active military service or to service-connected disability. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not help the Veteran, and his claim of entitlement to service connection for erectile dysfunction is denied. See 38 U.S.C.A §5107. ORDER Service connection for erectile dysfunction is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs