Citation Nr: 1308685 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-30 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for voiding dysfunction, to include as secondary to service connected non-Hodgkin's lymphoma, including as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected non-Hodgkin's lymphoma, including as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from December 1978 to September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Seattle, Washington, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to service connection for sexual dysfunction and voiding dysfunction. With respect to voiding dysfunction, the decision was a reconsideration of a February 2005 decision denying service connection for a genitourinary condition. In December 2011, the matters were remanded to the RO for additional development. FINDINGS OF FACT 1. Voiding dysfunction attributable to a diagnosis of bladder neck hypertrophy was not first manifested on active duty; the competent and probative evidence does not establish that voiding dysfunction is caused or aggravated by active service or any service-connected disability. 2. Diagnosed erectile dysfunction was not first manifested on active duty; the competent and probative evidence does not establish that erectile dysfunction is caused or aggravated by active service or any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for voiding dysfunction are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 1154(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2012). 2. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131, 1137, 11154(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated in February 2006 and April 2006 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a September 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional VA treatment records pertinent to the appeal, and he did not respond to the RO's December 2011 request for additional private records. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in January 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The examiner reviewed the claims file and the rationales for the opinions provided are based on objective findings, reliable principles, and sound reasoning. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Service Connection Criteria Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C.A. § 1117 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.317 (2012). Under those provisions, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). Presumptive service connection is warranted for certain infectious diseases: (i) Brucellosis; ii) Campylobacter jejuni; (iii) Coxiella burnetii (Q fever); (iv) Malaria; (v) Mycobacterium tuberculosis; (vi) Nontyphoid Salmonella; (vii) Shigella; (viii) Visceral leishmaniasis; and (ix) West Nile virus. 38 C.F.R. § 3.317(c)(1-2). The diseases listed in paragraph 38 C.F.R. § 3.317(c)(2) will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. With three exceptions, the diseases listed in 38 C.F.R. § 3.317(c)(2) must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. Further, if a Veteran who has or had an infectious disease identified in column A of 38 C.F.R. § 3.317(d)(2) also has a condition identified in column B of that section as potentially related to that infectious disease, VA must determine, based on the evidence in each case, whether the column B condition was caused by the infectious disease for purposes of paying disability compensation. This does not preclude a finding that other manifestations of disability or secondary conditions were caused by an infectious disease. If a Veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column "B" in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column "A" in that same table. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). 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). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Evidence of a temporary flare-up, without more, does not satisfy the level of proof required to establish an increase in disability. The regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310, was amended in September 2006. See 71 Fed. Reg. 52,744-52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the Court, specifically Allen. The prior regulation addressed whether a service-connected disability was the cause of a secondary disability. The Allen decision provides for consideration of whether a service-connected disability aggravates a non-service-connected disability. The change in regulations includes the holding from Allen in a new section, 38 C.F.R. § 3.310(b). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis I. Voiding Dysfunction The Veteran asserts his current voiding dysfunction is related to chemotherapy he underwent in connection with treatment for service connected non-Hodgkin's lymphoma. Service records are negative for complaints or findings of voiding dysfunction. The August 1992 separation examination report shows the genitourinary system was normal. On the accompanying medical history he specifically denied having or having had frequent or painful urination. The January 2012 VA examiner stated that it is not at least as likely as not that voiding dysfunction was incurred in service. Correspondence received from the Veteran's representative in February 2013 reflects an assertion that voiding dysfunction is a result of service in the Persian Gulf. As reflected in private records and as noted in the January 2012 VA examination report, the Veteran's voiding dysfunction has been attributed to a known diagnosis of bladder neck hypertrophy for which he underwent a transurethral incision of the prostate (TUIP) in 2004, as reflected in an April 2006 VA treatment record. The diagnosis renders the special provisions of 38 C.F.R. § 3.317 inapplicable. In concluding that it is very unlikely that voiding complaints are a complication of his service-connected non-Hodgkin's lymphoma or the chemotherapy he received for the lymphoma in 1998, the examiner noted that lymphoma has been in remission for many years and the Veteran has been discharged by his oncologist. The examiner further noted no diagnosis of lymphoma of the prostate which could lead to obstructive symptoms. The Veteran is competent to report his symptoms. Other than his lay assertions, however, there is no evidence to support his claim for service connection for voiding dysfunction under any theory of entitlement. In reaching a determination, the Board has accorded significant probative value to the January 2012 VA opinion. The examiner reviewed the claims file and the rationale for the opinion provided is based on objective findings, reliable principles, and sound reasoning, and is supported by VA and private treatment records. Such is far more probative than the Veteran's lay assertion. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for voiding dysfunction is not warranted. II. Erectile Dysfunction The Veteran asserts that his current erectile dysfunction is caused or aggravated by service connected non-Hodgkin's lymphoma and/or a transurethral incision of the prostate (TUIP) he underwent in 2004. Service records are negative for complaints or findings of erectile dysfunction. The August 1992 separation examination report shows the genitourinary system was normal. The January 2012 VA examiner stated that it is not at least as likely as not that erectile dysfunction was incurred in service. The January 2012 VA examination report notes the causes of erectile dysfunction are multiple and complicated, and that in most cases, no clear cut cause can be determined. Although the report of examination notes the Veteran's report that erectile dysfunction became worse after the 2004 transurethral incision of the prostate (TUIP), as reflected in an April 2006 VA treatment record, a November 2006 VA treatment record notes relevant symptoms were mild and "not as bothersome as before." Regardless, the VA examiner specifically concluded that it is not at least as likely not that erectile dysfunction was caused or aggravated by service connected non-Hodgkin's lymphoma. It was noted that the fact that the Veteran had erectile dysfunction long before his TUIP, coupled with the fact that the procedure was not an extensive one, made it very unlikely that the TUIP was the cause of the erectile dysfunction. As reflected above, service connection is not established for the voiding dysfunction which necessitated the TUIP. Service connection secondary to voiding dysfunction is not warranted. The Veteran is competent to report his symptoms. Other than his lay assertions, however, there is no competent evidence to support entitlement to service connection. Service connection is not established under any theory of entitlement. In reaching a determination, the Board has accorded significant probative value to the January 2012 VA opinion. The examiner reviewed the claims file and the rationale for the medical opinion was based on objective findings, reliable principles, and sound reasoning, and the opinion is supported by treatment records. Such is far more probative than the Veteran's lay assertion. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection for erectile dysfunction is not warranted. ORDER Service connection for voiding dysfunction is denied. Service connection for erectile dysfunction is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs