Citation Nr: 1314243	
Decision Date: 04/30/13    Archive Date: 05/15/13

DOCKET NO.  07-03 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for erectile dysfunction, including as secondary to service-connected prostate cancer.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

David Gratz, Counsel


INTRODUCTION

The Veteran served on active duty from January 1958 to September 1978.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran originally requested a Travel Board hearing in his January 2007 substantive appeal; however, in a September 2008 statement, the Veteran withdrew his request for a Board hearing.  The hearing request is therefore deemed withdrawn.  38 C.F.R. § 20.704(e).

The Board remanded this case for further development in August 2009 and June 2012, and requested a VHA medical opinion which was obtained in April 2013.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran's erectile dysfunction is at least as likely as not a result of his service-connected prostate cancer.


CONCLUSION OF LAW

The criteria for service connection for erectile dysfunction are met.  38 U.S.C.A. § 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision, the Board grants service connection for erectile dysfunction, which represents a complete grant of the benefits sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran maintains that his erectile dysfunction results from his service-connected prostate cancer.  In June 2011 and May 2012, the Veteran reported that he has experienced erectile dysfunction since his prostate cancer developed and he began treatment.  

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).  The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim.  McClain v. Nicholson, 21 Vet. App. 319 (2007).

Service connection may also be established for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2012).  Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  Id. at 303-04.

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").

The Board finds that the evidence supports an award of service connection for erectile dysfunction as secondary to service-connected prostate cancer.  First, the Veteran is competent to identify his own erectile dysfunction.  See Davidson, 581 F.3d at 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(2).

Additionally, the April 2013 VHA physician's opinion links the Veteran's erectile dysfunction to his service-connected prostate cancer.  The VHA physician first cited the Veteran's private treating physician, D. Clarke, M.D., who had informed the Veteran in March 2002 that "either of the radiation options would have a 20-40% incidence of impotence with an additional risk of erectile dysfunction."  The VHA physician explained that the VA's own consent form for brachytherapy (localized radiation treatment for prostate cancer) also covers late-onset complications, including impotence.  He concluded that "since impotence is a late complication of seed implant, I would have to agree that it is at least possible that the seed implant has contributed to the [Veteran's] impotence."  The Board finds the VHA physician's opinion and rationale both competent and credible based on his qualifications and the reasoning of the opinion.  38 C.F.R. § 3.159(a)(1).

The Board acknowledges that some contrary evidence is of record, but finds that it is entitled to less probative weight than the evidence above.  Specifically, in July 2011, a VA physician's assistant opined that it is less likely than not that the Veteran's loss of libido is secondary to his prostate cancer treatment because the Veteran had been off hormonal therapy for 8 years.  In a September 2012 addendum, the VA physician's assistant further justified his negative nexus opinion by finding that "there are no records directly subsequent to the [Veteran] having brachytherapy regarding ED [erectile dysfunction.]....The patient also has hyperlipidemia which can contribute to ED."  (Capitalization omitted.)

The Board finds that the VA physician's assistant's opinions less probative than those of the VHA physician.  First, the report that the Veteran had been off hormonal therapy for 8 years and did not have erectile dysfunction "directly subsequent" to having brachytherapy does not undermine the case for a link between prostate cancer therapy and erectile dysfunction because, as the VA's own consent form for brachytherapy shows and as the VHA physician explained, impotence is a late-onset complication of brachytherapy.  Second, as the VHA physician noted, the Veteran has numerous other factors that could contribute to his erectile dysfunction.  However, the presence of these factors does not invalidate the relationship between brachytherapy and erectile dysfunction.  Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).

Based on the above, the Board finds that the evidence is at least in equipoise as to whether the Veteran's erectile dysfunction is related to his service-connected prostate cancer.  Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for erectile dysfunction.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310.


ORDER

Service connection for erectile dysfunction is granted.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs