Citation Nr: 1320405 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 09-47 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for erectile dysfunction (ED), to include as the result of herbicide exposure. 2. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ, casued by the ED. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1971. This matter was received by the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. It is on appeal from a May 2009 rating decision. The Veteran was scheduled to present testimony before a traveling Veterans Law Judge in January 2012, but did not report to the hearing. As the record does not contain further explanation as to why the Veteran did not report to the hearing, or any additional requests for an appeals hearing, the Board deems the Veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran's erectile dysfunction is not related to service, to include in-service herbicide exposure, and was not caused or aggravated by any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, to include as the result of herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 1116(f), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(e), 3.310 (2012). 2. The criteria for SMC based on loss of use of a creative organ have not been met. 38 U.S.C.A. § 1114(k) (West 2002); 38 C.F.R. § 3.350 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research. See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999). Notwithstanding the presumption, service connection for a disability claimed as due to exposure to Agent Orange may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303. Service connection may also be established on a secondary basis for a disability that is shown to be 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) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Special monthly compensation is payable for loss of use of one or more creative organs due to service connected disability. 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. 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts that he has erectile dysfunction due to service, and that such erectile dysfunction warrants SMC based on loss of use of a creative organ. However, considering the pertinent evidence in light of the governing legal authority, the Board finds that the Veteran's claims must be denied. The record does not reflect, and the Veteran has not asserted, that erectile dysfunction began during service or until many years after service. Service treatment records indicate no findings or reports related to erectile dysfunction, and at the time of his January 1971 examination for separation from service, the Veteran had a normal clinical evaluation of the genito-urinary system, and no current or history of erectile dysfunction was noted or reported by the Veteran. The earliest indication of erectile dysfunction in the record is a January 2008 VA treatment note reflecting that the Veteran wanted to try something for his erectile dysfunction, and a diagnosis of erectile dysfunction. Rather, as reflected in his February 2009 claim, the Veteran has asserted that his erectile dysfunction is related to his in-service herbicide exposure. Also, as reflected in a May 2013 brief, the Veteran's representative has asserted that the Veteran's erectile dysfunction might be secondary to his radiation and chemotherapy for his service-connected larynx cancer, and that, as VA treatment records have shown impaired fasting glucose, the Veteran might have subsequently developed type II diabetes mellitus, which might be service-connected and related to his erectile dysfunction. The Veteran is currently service connected for squamous cell carcinoma of the larynx, status post total laryngectomy, bilateral neck dissections, and chemoradiation therapy. However, service connection for diabetes mellitus has not been awarded by VA or claimed by the Veteran. While the record reflects that the Veteran served in Vietnam during the Vietnam War, and is therefore presumed to have been exposed to herbicides, the evidence does not show that any current erectile dysfunction might be related to such exposure. Erectile dysfunction is not a disorder listed in 38 C.F.R. § 3.309(e), and therefore is not presumed to be related to herbicide exposure. Furthermore, the record contains no competent and probative evidence indicating a relationship between the Veteran's in-service herbicide exposure and his current erectile dysfunction first reported 35 years later, and neither the Veteran nor his representative have identified any such evidence. See Maxson, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Also, the evidence does not reflect that the Veteran's erectile dysfunction is caused or aggravated by any service-connected disability. While erectile dysfunction is noted in VA treatment records beginning in October 2008, nowhere in any of the private or VA treatment records is any relationship between either the Veteran's service-connected cancer or any treatment for such cancer and the Veteran's erectile dysfunction suggested. Furthermore, the record contains no competent and probative evidence indicating a relationship between the Veteran's current erectile dysfunction and either his larynx cancer or its treatment, and neither the Veteran nor his representative have identified any such evidence. While August 2009 VA treatment records reflect a diagnosis of impaired fasting glucose, the record contains no diagnosis of type II diabetes mellitus, no documentation of any such diagnosis has been submitted or identified by the Veteran or his representative, and the record does not reflect that the Veteran has filed any service connection claim for diabetes mellitus. The record therefore does not reflect any diabetes related to service, and thus any theory of service connection for erectile dysfunction as secondary to such diabetes mellitus must fail. A lay person may speak as to the existence of a disease with "unique and readily identifiable features" that is "capable of lay observation," or to etiology in some limited circumstances in which nexus is obvious merely through lay observation. Barr, 21 Vet. App. at 308-09; Jandreau, 492 F.3d 1372. The Veteran and his representative assert that the Veteran's current erectile dysfunction is related to in-service herbicide exposure more than 35 years prior, his service-connected larynx cancer and treatment, or type II diabetes mellitus. However, the existence of type II diabetes or a nexus between erectile dysfunction and such herbicide exposure or cancer is a determination that is medical in nature. As such, the Veteran and his representative, as laypersons, are not competent to address etiology in the present case. Thus, the evidence as a whole weighs against a finding that erectile dysfunction was either caused by service, to include in-service herbicide exposure, or was caused or aggravated by any service-connected disability. Accordingly, the Board finds that the claim for service connection for erectile dysfunction must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Regarding the Veteran's claim for SMC based on loss of use of a creative organ, the sole basis of the Veteran's claim is that SMC is warranted for service-connected erectile dysfunction. As the Board denies the Veteran's service connection claim, there is no legal basis for his SMC claim. Therefore, it must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letter dated in March 2009, which informed the Veteran of all the elements required by Pelegrini II and Dingess/Hartman. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination was not obtained for the service connection claim because the evidence did not surpass the low threshold set by McLendon. Where the evidence does not establish that a disability may be associated with service or a service-connected disability, there is no need to obtain a medical opinion regarding any such nexus. As discussed above, there is no medical or other competent evidence suggesting a nexus between the Veteran's claimed erectile dysfunction and in-service herbicide exposure or any service-connected disability, evidence of continuity of symptomatology from service, or any other such evidence that would warrant obtaining a medical nexus opinion. The Veteran's service treatment records, VA medical treatment records, and identified private treatment records have been obtained. Therefore, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis, 6 Vet. App. at 430. Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for erectile dysfunction, to include as the result of herbicide exposure, is denied. SMC based on loss of use of a creative organ is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs