Citation Nr: 1317520 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 05-37 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for erectile dysfunction (ED), to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned during a Board hearing held in March 2008. A copy of the transcript (Transcript) has been associated with the record. In August 2008, June 2011, and November 2012, this issue was remanded by the Board for additional development. Although it appears that the Veteran attempted to withdraw his appeal for entitlement to service connection for ED on two separate occasions (in a signed, written correspondence dated March 2008, and again during his Board hearing the same month), the matter nonetheless remained in appellate status. The issue of entitlement to service connection for tinnitus, also remanded, was granted by the Appeals Management Center (AMC) in February 2013. The Board is satisfied that there was substantial compliance with its remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT ED did not have its onset in or is otherwise attributable to service or to a service-connected disability. CONCLUSION OF LAW ED was not incurred in or aggravated by active service, and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Further, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issues of entitlement to service connection for disorders of the low back, left knee, and bilateral feet, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in November 2004 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. Further, the Veteran's service treatment records and pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, a VA examination was provided in March 2012 to ascertain whether the Veteran's ED diagnosis was etiologically-related to service, and following a November 2012 Board remand, an additional opinion was obtained in December 2012 to determine whether that diagnosis was related to his service-connected posttraumatic stress disorder (PTSD). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinions obtained are adequate, as the examiner provided findings relevant to the issue at hand. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The Veteran has claimed entitlement to service connection for ED. He contends that his current diagnosis is causally-related to medication used to treat his service-connected PTSD. The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). If a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2012). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a), which does not include shin splints. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). At the outset, the Board notes that the Veteran has a current diagnosis of ED. See VA examination report, March 2012. Thus, element (1) of Hickson has been satisfied for his service connection claim. Turning to the Veteran's service treatment records, the Board notes that there is no evidence of complaints, treatment, or diagnosis of an erectile disorder during the Veteran's period of active service. After service, the record shows a diagnosis of erectile disorder by a VA examiner in March 2000. At that time, he complained of erections not sustained for three months. It was noted that this could be drug related. In July 2002, the Veteran was noted to be taking Zoloft, and was having sexual side effects. Zoloft was prescribed to the Veteran for his PTSD. In conjunction with his claim, the Veteran was afforded a VA examination in June 2010. At that time, it was noted that the Veteran was initially diagnosed with ED at the same time he was diagnosed with renal dysfunction. It was further noted that the Veteran treated the disorder with medication, with fair outcome. Following an examination, the examiner remarked that the Veteran's ED was associated with renal disease (not service connected). The examiner further stated that ED was not directly related to the Veteran's period of active service, and that ED was not linked to any other service-connected disability. Following an additional VA examination, conducted in March 2012, the examiner opined that ED was likely associated with, or were chronically worsened by, the Veteran's hypertension (also not service connected). As to whether the Veteran's ED is etiologically-related to medication used to treat a service-connected disability, while the Veteran's claim did not initially encompass the theory of entitlement to secondary service connection due to psychiatric medication, in Roebuck v. Nicholson, 20 Vet. App. 307 (2006), the Court held that although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. The issue of entitlement to service connection for erectile dysfunction, due to medication for service connected PTSD, was therefore remanded by the Board in November 2012 for an addendum opinion from a VA examiner. A VA opinion was authored in December 2012. The examiner indicated that the claims file had been reviewed, and a recitation of the Veteran's prescription medication was provided. The examiner noted that the Veteran was currently taking Quietapine for his PTSD. He indicated that this medication was a known cause of sexual dysfunction and ED, and that another prescription medication which the Veteran was taking, Sertraline, also had a known association with sexual dysfunction and ED. However, the examiner pointed out that the Veteran was taking Sildenafil to treat his ED as early as 2003, prior to the treatment of his PTSD with any drug other than Mirtazapine. He went on to state that Mirtazapine was specifically used to treat psychiatric illness in the setting of sexual dysfunction, given that it was now shown to cause sexual side effects. Because the Veteran reported ED prior to any treatment associated with a service-connected disability which has known sexual side effects, the examiner opined that it was less likely than not that the Veteran's PTSD treatment caused his ED. Further, there was no objective evidence of record to demonstrate that ED had progressed beyond the natural history of the condition, and therefore there was no evidence of aggravation. Although the record contains numerous treatment reports documenting ongoing treatment for ED, not a single medical professional has opined that the Veteran's claimed disorder was incurred during service, or that ED was related to a service-connected disorder, to include PTSD, or the medication used to treat any such disability. As to the Veteran's assertions that he currently suffers from ED which is made worse by PTSD treatment, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his ED began during service, or was caused or aggravated by a service-connected disability. In that regard, he is deemed competent to report symptoms of ED. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. However, the Veteran has not demonstrated competence to provide an opinion as to the onset or cause of a complex medical diagnosis such as ED, as this is not a disorder whose cause is simple to identify (as shown by multiple theories of etiology by medical professionals of record), especially given the Veteran's complex medication history. See Jandreau. Based on the foregoing, the Board finds that there is no competent or credible lay or medical evidence of record linking the Veteran's claimed disorder to his period of active service, or to a service-connected disability, or to the treatment thereof. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Colvin. Despite the presence of VA treatment records throughout the appellate period, as well as multiple VA examination reports and opinions, the preponderance of the medical evidence is against the finding of a relationship between the Veteran's currently-diagnosed ED and service, or to a service-connected disability. In sum, the most probative evidence of record does not establish that the Veteran's ED is related to service, or to a service-connected disability. There are no contemporaneous records of any complaints, findings, treatment, or diagnosis of ED during service, and the Veteran's separation examination was negative as to the claim on appeal. Instead, the record establishes that, more than three decades after separation, the Veteran received an initial diagnosis of ED at the same time as a renal disorder was diagnosed. Following several VA examinations and years of ongoing treatment, the record lacks a probative medical opinion linking ED to either active duty, or to a service-connected disability. While the Board has taken the Veteran's statements regarding long-term ED symptomatology into account, he has not demonstrated the medical competency to provide an etiological link between these two disorders. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Therefore, the preponderance is against the Veteran's claim for entitlement to service connection for ED, to include as secondary to PTSD, and the claim must be denied. ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs