Citation Nr: 1317981 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 07-15 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). In March 2010, the Veteran testified before the Board at a hearing. In a March 2013 letter from the Board, the Veteran was advised that the Veterans Law Judge who conducted the hearing in 2010 was no longer employed by the Board. Since the regulations provide that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal, the Veteran was asked if he wished to have another hearing before the Board. 38 C.F.R. § 20.707 (2012). The Veteran has not responded to the Board's March 2013 letter within the 30-day time period provided; therefore, the Board presumes that he does not wish to have another hearing before the Board with regard to the issues on appeal. His claim will be considered on the evidence of record. These matters were previously before the Board in October 2011 when they were remanded to the RO for additional development. The matters have been returned to the Board for appellate consideration. While the Veteran's appeal was in remand status, his claim for entitlement to service connection for schizophrenia was granted in a September 2012 rating decision. This action constitutes a full grant of the benefit sought on appeal with respect to that issue, and it is no longer before the Board. The Board observes that the Veteran's arguments in favor of his claim for entitlement to SMC based on loss of use of a creative organ suggest that he is seeking service connection for erectile dysfunction or loss of libido. As the issue of entitlement to service connection for erectile dysfunction or loss of libido has not yet been adjudicated by the RO, the Board does not have jurisdiction over it. Accordingly, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The most probative, competent, and credible evidence of record fails to demonstrate that the Veteran has a current low back disability that is etiologically related to his active service. 2. The evidence of record fails to demonstrate that the Veteran has an acquired absence of one or both testicles or ovaries or other creative organ. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for special monthly compensation based upon an anatomical loss of a creative organ have not been met. 38 U.S.C.A. §§ 1110, 1114(k), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.350 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claim for entitlement to service connection for a low back disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Prior to the initial adjudication of the Veteran's claim, a letter dated in November 2005 advised the Veteran of the information and evidence necessary to substantiate the claim for service connection, as well as the division of responsibility between VA and the appellant in obtaining such evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The November 2005 notice letter was issued prior Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), and therefore did not provide the Veteran with notice of the criteria for the assignment of an effective date and a disability rating in the event of an award of the benefit sought. However, as the Veteran's claim for service connection is denied herein, this deficiency in notice constitutes no more than harmless, non-prejudicial error, as an effective date and disability rating will not be assigned. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, with the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). The Board finds that the notice requirements that VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board acknowledges that the letter provided to the Veteran in November 2005 with regard to his erectile dysfunction provided the required notice for a claim for entitlement to service connection, and not entitlement to SMC. However, this notice defect was not prejudicial to the Veteran, because the evidence of record demonstrates that he had actual knowledge of the information and evidence necessary to substantiate the claim. In that regard, a statement of the case issued in April 2007 and a supplemental statement of the case provided in September 2012 set forth the applicable law, as well as the bases for the denial. The duty to assist the Veteran has also been satisfied in this case with regard to both claims on appeal. The Veteran's service treatment records, VA treatment records, and Social Security Administration (SSA) records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Although the Veteran identified private medical treatment records during his March 2010 hearing before the Board, the Veteran did not respond to the RO's October 2011 letter requesting that he provide the required authorizations to obtain those private medical treatment records. Accordingly, VA has been unable to obtain them. The duty to assist is not a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA is required to provide the Veteran with a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The Veteran was provided with a VA examination in February 2012, which addressed the etiology of the Veteran's current low back disorder. The Veteran has not indicated that he found the VA opinion to be inadequate. Moreover, the Board finds that the opinion provided by the VA examiner to be adequate, as it is based on a complete review of the Veteran's claims file, and provides sufficient explanation and rationale for the conclusion that the Veteran's low back disorder is not related to his military service. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the Veteran was provided with a VA examination pertinent to his alleged erectile dysfunction in February 2012, the examination did not address or determine whether he had an anatomical loss of use of a creative organ. Nevertheless, a VA examination with regard to the claim for SMC is not required in this case, as there is no medical or lay evidence suggesting that the Veteran currently has an anatomical loss of use of a creative organ. 38 U.S.C.A. § 5103A(d), 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ identified the issues on appeal, and focused the intent of the hearing by ensuring that questions were asked to ascertain why the Veteran believed that his low back disability was related to service and why he believed that he was entitled to SMC based on loss of use of a creative organ. The VLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the Veteran's claims; through his testimony, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. Accordingly, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. 3.103(c)(2); any error in notice or assistance by the VLJ at the March 2010 Board hearing constitutes harmless error. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. 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). I. Low Back Disability The Veteran contends that his current low back disability is related to his active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including arthritis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In addition, 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). Pursuant to 38 C.F.R. § 3.303(b), VA may award service connection where a claimant can demonstrate "(1) that a condition was 'noted' during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. A claimant may rely on lay evidence "to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492, F.3d 1372, 1377 (Fed. Cir. 2007) (footnote omitted). "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran's service treatment records reflect one complaint of low back pain during his active duty service. In June 1967, the Veteran complained of right low back pain since the day before. He indicated that he had pain on bending. Examination revealed limitation of flexion and right costovertebral angle tenderness. A straight leg raising test was negative on the right side, but there was pain in the right costovertebral angle at 60 degrees on left straight leg raising. There was 90-degree flexion on sitting up after straight leg raising. The diagnosis was low back strain with inconsistent flexion of the back. The physician reported that malingering was suspected. An August 1967 separation examination shows that the spine was normal. In a report of medical history, completed at that time, the Veteran denied a history of recurrent back pain. An April 1998 private record notes the Veteran's complaints of neck and back pain. Physical examination was normal, but there was some pain in the left gluteal area. However, there was no tenderness to palpation. No diagnosis pertinent to the low back was made. In May 1999, the Veteran reported back pain. The diagnosis was back pain. A June 1999 record notes a diagnosis of arthritis with degenerative disc disease. In August 1999, the Veteran complained that his arthritis was more severe. It is unclear where the arthritis was located. A September 1999 record indicates that the Veteran reported low back pain. The diagnosis was arthritic pain. An October 1999 X-ray of the lumbar spine was normal. In December 1999, the Veteran underwent a VA examination. The report notes his complaints of multiple joint and back aches and pains. He stated that he was prescribed Vicodin for one month. He denied a history of trauma to his joints with the exception that, in the past, he was intoxicated and would wake up with several bruises and excoriations and was not clear or sure how they came about. Physical examination of the thoracolumbar spine showed no signs of trauma, ecchymosis, or bony deformity. There was no paraspinal spasm and no bony tenderness. Range of motion showed flexion to 40 degrees, extension to 25 degrees, right and left rotation to 40 degrees, and right and left flexion to 20 degrees. Straight leg raising was negative to 90 degrees. X-rays of the lumbosacral spine showed mild upper lumbar dextroconvex lumbar scoliosis, which may reflect positioning. The diagnoses included chronic lumbar spine pain, rule out degenerative joint disease, degenerative disc disease. A January 2000 private treatment record reflects that the Veteran reported chronic back and neck pain. The diagnoses included chronic back pain secondary to degenerative disk disease, and arthritis. It is unclear whether the diagnoses made were related to the Veteran's low back pain or to his cervical spine pain and bilateral knee pain, as previous private medical records reflect numerous complaints of cervical spine pain only with diagnoses of degenerative disc disease and diagnoses of arthritis in his knees. An October 2000 record notes that the Veteran's back pain was consistent. Diagnoses included arthritis, but it is unclear as to whether the arthritis was in his low back. In October 2000, the Veteran underwent an orthopedic consultation. He complained of back pain, aggravated with stair climbing or descending. Physical examination of the lumbar spine showed range of motion with flexion to 70 degrees, extension to 20 degrees, and right and left lateral bending to 20 degrees. There was a slight scoliosis but no evidence of spasm. There was tenderness and pain on motion with limitation of motion. Straight leg raising was negative, and a Lasegue's test was negative. The diagnosis was degenerative arthritis of multiple joints throughout the body. VA treatment records from 2006 are negative for any complaints of or treatment for a low back disorder. During a March 2010 hearing before the Board, the Veteran testified that he received treatment from a private physician for his back pain, and that he took medication. He noted that he had back pain in service and that he used to complain to his Sergeant about doing push-ups. He indicated that, during service, he had a burning sensation in the low back and was constipated. In February 2012, the Veteran underwent a VA examination. The Veteran reported low back pain during service and since that time. He complained of low back pain with pain bending over and picking things up. He also noted flare-ups with cold and rainy weather and during times of stress. Physical examination revealed range of motion with forward flexion to 40 degrees with pain at 35 degrees, extension to 20 degrees with pain at 15 degrees, right and left lateral flexion to 25 degrees with pain at 20 degrees, and right and left lateral rotation to 25 degrees with pain at 20 degrees. The Veteran was able to perform repetitive-use testing with three repetitions and no additional limitation in range of motion thereafter. The examiner stated that the Veteran had functional impairment due to his spine disorder, as there was less movement than normal, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, or weight bearing. There was no tenderness to palpation in the spine and there was no guarding or muscle spasm. Muscle strength was 5/5, and there was no muscle atrophy. Deep tendon reflexes were normal, except that the left knee reflex was hypoactive. Sensory examination was normal, but straight leg raising test was positive. The Veteran complained of intermittent, moderate radicular pain with paresthesias but no numbness. There were no other signs of radiculopathy. The examiner described the radiculopathy as mild and no other neurologic abnormalities were found. The examiner indicated that the Veteran does not have intervertebral disc syndrome; nor does he require the use of assistive devices. The diagnosis was degenerative disc disease of the low back. After reviewing the Veteran's claims file, conducting an interview, and performing a physical examination, the examiner opined that the Veteran's lumbar spine disorder is not related to his active duty service. The examiner explained that the Veteran's degenerative disc disease of the lumbar spine was not found until 2004, and it has been over 40 years since his one in-service complaint of low back pain. Thus, the examiner felt that the Veteran's current low back disorder is less likely related to military service and more likely due to muscle strains from his day-to-day activities and the dextroconvex of his upper lumbar spine. After a thorough review of the evidence of record, the Board concludes that service connection for a low back disability is not warranted. There is a current diagnosis of a low back disability with evidence of degenerative disc disease. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the Veteran's service treatment records reflect that he complained once of low back pain during service; thus, there is evidence of in-service low back pain. Nevertheless, the weight of the competent and probative evidence of record does not support a nexus between the Veteran's current low back disability and his active duty service. Importantly, after consideration of the Veteran's entire claims file, the Veteran's statements, and after performing a physical examination of the Veteran, the February 2012 VA examiner concluded that the Veteran's low back disorder was not related to service. The VA examiner provided explanation and rationale for the opinion, explaining that there was no evidence of degenerative disc disease until 2004, almost 40 years after service discharge, and that the Veteran's current degenerative disc disease was more likely due to other nonservice-related factors. Moreover, there is no medical or lay evidence of continuity of symptomatology for low back pain symptoms since service discharge. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not alleged, and the evidence does not show, that he has had symptoms of low back pain continuously since his service discharge. Although there was one complaint of low back pain during service, there was no finding of a low back disability or low back pain at service discharge. Further, the first medical evidence of low back pain following service discharge was in 1998, over 30 years after the Veteran was discharged from service. Moreover, as noted above, February 2012 VA examiner considered the Veteran's lay statements regarding post-service symptomatology, and concluded that the Veteran's low back disorder was not related to his active duty service. Degenerative joint disease was not diagnosed within one year after service discharge; therefore, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; see also 38 C.F.R. § 3.307, 3.309. Accordingly, as there is no competent and probative evidence providing the required nexus between military service and a current low back disorder, service connection for a low back disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). II. Special Monthly Compensation The Veteran contends that he is entitled to SMC based on the loss of use of a creative organ. During his March 2010 hearing before the Board, he alleged that his loss of use of a creative organ, described as erectile dysfunction, is the result of the psychiatric medication that he is required to take for his service-connected schizophrenia. He stated that his physician told him that his psychiatric medications suppressed his libido. SMC is a statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in the VA Rating Schedule. SMC claims, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114(k) and 38 C.F.R. §§ 3.350(a)(1), 3.352. SMC may be paid for loss of use of a creative organ. Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. SMC is awarded either for anatomical loss or of use of a creative organ. 38 U.S.C.A. § 1114(k) (West 2002 & Supp. 2012); 38 C.F.R. § 3.350(a)(1) (2012). SMC is payable at a specified rate if the Veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organ. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. 38 C.F.R. § 3.350(a)(1)(i-ii). The Veteran's service treatment records, VA treatment records, and private medical treatment records in the claims file are silent as to any complaints of or treatment for erectile dysfunction or loss of use of a creative organ. In February 2012, the Veteran underwent a VA examination. The examiner noted that the Veteran takes Viagara for erectile dysfunction. The examiner stated that the Veteran has not had an orchiectomy, but that he does have a voiding dysfunction due to benign prostatic hypertrophy. The examiner noted that the voiding dysfunction caused urinary frequency and obstructed voiding. There was no evidence of a history of recurrent symptomatic urinary tract or kidney infections. The examiner reported that the Veteran does have erectile dysfunction due to medications and age. The examiner stated that the Veteran was able to achieve an erection sufficient for penetration and ejaculation without medication and that he did not have retrograde ejaculation. There was no history of epididymitis, epididymo-orchitis, or prostatitis. Physical examination reflects that the penis was not examined, that the testes were not examined, that the epididymis was not examined, and that the prostate was not examined. There was no evidence of benign or malignant neoplasm or metastases, and there were no relevant scars. A testicular biopsy was not performed. The diagnosis was erectile dysfunction. After reviewing the Veteran's claims file, the VA examiner determined that it was less likely than not that the Veteran's erectile dysfunction is related to taking anti-psychotic medication. The examiner explained that the Veteran reported that he did not take his anti-psychotic medication because he did not believe that they worked, and that there was no anti-psychotic medication listed in the Veteran's medical files. Additionally, the examiner noted that "medical evidence shows that men after 50 years old will experience [erectile dysfunction]." After thorough consideration of the evidence of record, the Board concludes that entitlement to SMC based on loss of use of a creative organ is not warranted. There is no evidence of record to suggest that the Veteran currently has an anatomical loss, or loss of use of a creative organ, as defined in the regulations. Specifically, the February 2012 VA examiner noted that the Veteran was able to achieve an erection sufficient for penetration and ejaculation without medication, and that he did not have retrograde ejaculation. Additionally, there is no evidence of acquired absence of one or both testicles or ovaries or other creative organ, and the Veteran does not contend that he has such anatomical loss. 38 C.F.R. § 3.350(a)(1). Instead, the Veteran alleges that he has a loss of libido caused by taking anti-psychotic medications for a service-connected disability. As noted above, the Veteran's allegations suggest a desire to seek service connection for erectile dysfunction, and that claim has been referred to the RO herein. A loss of libido or erectile dysfunction not related to an anatomical loss, or loss of use, of a creative organ does not entitle the Veteran to SMC under the pertinent regulations. Accordingly, entitlement to SMC based on loss, or loss of use, of a creative organ is not warranted in this case. ORDER Entitlement to service connection for a low back disability is denied. Entitlement to a special monthly compensation based on loss of use of a creative organ is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs