Citation Nr: 1320303 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 07-37 900A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to a service connected disability. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran had active service from September 1974 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In an April 2009 decision, the Board denied the claim for service connection for erectile dysfunction. The Veteran appealed the April 2009 decision to the United States Court of Appeals for Veterans Claims (Court) and pursuant to a Joint Motion for Partial Remand, the parties to the Joint Motion determined that the Board's decision was deficient with respect to its adjudication of the Veteran's claim for service connection for erectile dysfunction and vacated the Board's decision with respect to this claim. In May 2011, the Board remanding the erectile dysfunction claim for additional development. In June 2011, the Veteran's private attorney notified VA that he had revoked his limited Power of Attorney (POA). On two occasions in October 2012 and again in February 2013, the Board obtained Veterans Health Administration (VHA) opinions in connection with the appeal. The Board thereafter provided the Veteran with copies of the VHA opinions and an opportunity to respond. FINDING OF FACT The preponderance of the evidence shows that the Veteran erectile dysfunction was not caused or aggravated by service; it is not an organic disease of the nervous system; and it was not caused or aggravated by his service connected right ankle disability, airway disease, posttraumatic stress disorder (PTSD), or bilateral hearing loss. CONCLUSION OF LAW Erectile dysfunction was not incurred in or aggravated by military service, may not be presumed to have been incurred in service, and it is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Initially, the Board finds that a letter dated in May 2007, prior to the March 2008 rating decision, provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letter as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service treatment records from the Nashville VA Medical Center, including all post-May 2009 treatment records, in substantial compliance with the Board's remand instructions. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The record shows that the Veteran was provided with a VA examination in February 2012. The record also shows that on two occasions in October 2012 and again in February 2013 VHA opinions were obtained. Moreover, the Board finds that the February 2012 VA examiners opinion when combined with the VHA opinions is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because, after a review of the record on appeal, after taking a detailed medical history from the claimant, and/or after an examination, the examiners provided opinions as to the origins of his erectile dysfunction which opinions were based on citation to relevant evidence found in the claims file. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment. In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the Veteran's claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim The Veteran contends that he has erectile dysfunction directly due to his military service. In the alternative, he asserts that he has erectile dysfunction due to his service-connected right ankle disability, airway disease, PTSD, and/or bilateral hearing loss. The Veteran also requests that he be afforded the benefit of the doubt. 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 or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). The Board further notes that pertinent laws and regulations provide that organic disease of the nervous system will be presumed to have been incurred in service if it had become manifest within one year of the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. Compensation is payable when service-connected disability has aggravated a non-service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Regarding a current disability, post-service treatment records starting in 2006 document the Veteran's complaints and/or treatment for erectile dysfunction. Also see VA examination dated in February 2011. As to service incurrence under 38 C.F.R. § 3.303(a), the Board finds that the Veteran is both competent and credible to report on what he can see and feel such as observable symptoms of erectile dysfunction while on active duty even when not documented in his medical records because these symptoms come to him through his own senses. See Davidson. However, the Veteran's service treatment records, including the July 1978 separation examination, are negative for symptoms off or a diagnosis of erectile dysfunction. In fact, when examined for separation in July 1978 not only did the Veteran not report a history of erectile dysfunction but the examiner did not report any genitourinary problems. While the Veteran as a lay person is competent to report on his symptoms of erectile dysfunction because this requires only personal knowledge as it comes to him through his senses, the Board finds that he is not credible because the July 1978 separation examination is negative for a history of or a diagnosis of erectile dysfunction than the appellant's claims that he had problems with erectile dysfunction while on active duty. Accordingly, the Board finds that the most competent and credible evidence does not show that the Veteran had erectile dysfunction while on active duty. Therefore, the Board finds that entitlement to service connection for erectile dysfunction must be denied based on in-service incurrence despite the Veteran's claims regarding having problems with observable symptoms of this disability while on active duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the second October 2012 VHA opined that the Veteran's erectile dysfunction is not an organic disease of the nervous system. This medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, the Board finds that this regulation is not applicable to the current appeal because the Veteran's erectile dysfunction is not one of the diseases listed at 38 C.F.R. § 3.309(a). See Walker. The Board thus finds that entitlement to service connection for erectile dysfunction based on post-service continuity of symptomatology must be denied. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current erectile dysfunction and a disease or injury of service origin. See 38 U.S.C.A. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, in an August 2009 VA treatment record that Veteran reported that he only started having a problem with erectile dysfunction after he starting taking his blood pressure medication. Similarly, the October 2012 VHA including the opinion that there is no evidence to support the claim that the Veteran's erectile dysfunction is related to his military service because nothing in the service treatment records show his erectile dysfunction was present during his military service including at the time of his separation; erectile dysfunction was not diagnosed until August 2006 and at that time he not only had problems with hypertension, type 2 diabetes mellitus, obesity, hyperlipidemia, and prostatism but was being treated with alpha blocker therapy and hypertensive medication; and the likely etiology of his erectile dysfunction is his associated medical problems and aging. Likewise, in the subsequent October 2012 VHA it was opined that the Veteran's erectile dysfunction was caused by a vascular change related to the co-morbidities he had in 2006 (i.e., hypertension, type 2 diabetes mellitus, obesity, hypercholesterolemia and hyperglycemia) and age that have manifested over time. It was next opined that two of the medications that the Veteran took for his co-morbidities in 2006 are known to worsen vasculogenic impotence. It was thereafter opined that his later diagnosis of benign prostate hypertrophy co-exists with the older male population. These opinions are not contradicted by any other medical opinion of record. See Colvin. As to the lay assertions that the claimant's erectile dysfunction was caused by service, the Board finds the VA examiner and VHA medical opinions more probative than these lay claims because physicians have more expertise. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Moreover, the Board finds that diagnosing chronic erectile dysfunction requires special medical training that lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence. Jandreau. Therefore, the Board finds that the most competent and credible evidence of record does not show that the Veteran's current erectile dysfunction that had its onset in or was caused by service. Thus, the Board finds that entitlement to service connection for erectile dysfunction is not warranted based on the initial documentation of the disability after service because the weight of the competent and credible evidence is against finding a causal association or link between the post-service disorder and an established injury, disease, or event of service origin. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d). As for secondary service connection under 38 C.F.R. § 3.310, the Veteran maintains that his erectile dysfunction was either caused or aggravated by his service-connected right ankle disability, airway disease, PTSD, and bilateral hearing loss. However, the record is negative for a competent and credible medical opinion finding a relationship between his current erectile dysfunction and his service-connected right ankle disability, airway disease, PTSD, and bilateral hearing loss. See 38 U.S.C.A. §§ 1110, 1131; Allen. In fact, the February 2012 VA examiner opined that it is less likely than not that the Veteran's erectile dysfunction was caused by or a result of his mild PTSD because there is not a strong basis for the scientific evidence linking erectile dysfunction to mild PTSD. In the second October 2012 VHA, it was opined that it is not likely that the erectile dysfunction first diagnosed in 2006 was caused or aggravated by any in-service disease or injury because he was discharged in 1978 and there is no mention in the service treatment records of sexual dysfunction being present at or before that time and the record shows that he was married since approximately two years after his separation from military service, in 1980, and that he has two children suggesting that in the early years post-service he did not have significant erectile dysfunction. The second October 2012 VHA also included the opinion that the Veteran's vasculogenic impotence is unrelated to his medication or treatment for his service-connected right ankle disability, airway disease, PTSD, and bilateral hearing loss. Similarly, the February 2013 VHA including the opinion that the Veteran's obesity, hypertension, diabetes, and hyperlipidemia as well as the medications used to treat these problems are known to be associated with erectile dysfunction and are more than likely are the conditions contributing to his erectile dysfunction. Lastly, the February 2013 VHA including the opinion that he could find no medications or other treatment for the Veteran's service connected right ankle disability, airway disease, PTSD, and bilateral hearing loss that could be a cause or a factor contributing to the claimant's erectile dysfunction. These opinions are also not contradicted by any other medical opinion of record. See Colvin. As to the lay regarding the claimant's erectile dysfunction being due to a service-connected disability, the Board finds the VA examiner and VHA opinions more probative than these lay claims because physicians have more expertise. See Black. The Board also finds that diagnosing erectile dysfunction requires special medical training that lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation. See Davidson. Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that his erectile dysfunction was due to a service-connected disability are not competent evidence. See Jandreau. Therefore, the Board finds that the preponderance of the most competent and credible evidence of record shows that the Veteran's erectile dysfunction was neither caused nor aggravated by his service-connected right ankle disability, airway disease, PTSD, and/or bilateral hearing loss. See Allen. Accordingly, the Board finds that entitlement to service connection for erectile dysfunction is not warranted on a secondary basis because the weight of the competent and credible evidence is against finding a causal association or link between the disorder and an already service-connected disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.310. Accordingly, the Board must conclude that entitlement to service connection for erectile dysfunction must be denied on a direct and secondary basis because the weight of the evidence is against the claim. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most competent and credible evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for erectile dysfunction is denied. ____________________________________________ STEVEN D. REISS Veterans Lasw Judge, Board of Veterans' Appeals Department of Veterans Affairs