Citation Nr: 1325326 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 08-33 863A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to November 2005 with combat service in Iraq. He also had additional periods of active duty for training, including from July 1997 to November 1997 and February 2004 to June 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for a right knee sprain and degenerative joint disease of the lumbar spine, assigning each a 10 percent evaluation effective December 1, 2005; and denied service connection for posttraumatic stress disorder (PTSD), left hand numbness, pseudofolliculitis, erectile dysfunction (ED), patellofemoral pain syndrome of the left knee, a right shoulder condition (major), a left shoulder condition (minor), and a throat condition; and an October 2009 rating decision from the Montgomery RO, which denied service connection for hypertension. In July 2007 and November 2009, the Veteran submitted notices of disagreement and subsequently perfected his appeals in November 2008 and April 2011. In a June 2011 rating decision, the Montgomery RO granted service connection for PTSD. This grant of service connection is considered a full grant of the benefits on appeal for the Veteran's PTSD claim. As such, the claim of entitlement to service connection for PTSD is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In December 2011, the Veteran presented sworn testimony during a video conference hearing in Montgomery, Alabama, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In May 2012, the Board granted service connection for left hand numbness and pseudofolliculitis barbae, denied service connection for the right and left shoulder and gastroesophageal reflux disease (claimed as a throat condition), granted an increased initial rating of 20 percent for the lumbar spine, denied an increased initial rating for the right knee, and remanded the claims for service connection for hypertension, ED, and the left knee to the Appeals Management Center (AMC) for further evidentiary development, including obtaining updated VA treatment records and obtaining VA examinations/opinions for all three issues. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC obtained updated VA treatment records. Additionally, the Veteran was afforded VA examinations/opinions for his ED, left knee, and hypertension in June and August 2012. Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board. FINDINGS OF FACT 1. The Veteran's currently diagnosed erectile dysfunction is the result of medications taken for his service-connected PTSD. 2. A preponderance of the evidence fails to establish that the Veteran currently has a left knee disability that is attributable to his active service. 3. The Veteran was diagnosed with hypertension within one year of his discharge from active duty. 4. It is presumed that the Veteran's currently diagnosed hypertension is the result of his military service. CONCLUSIONS OF LAW 1. Erectile dysfunction was incurred in or aggravated by a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. A left knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. Hypertension is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, 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 claim. 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). 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 Veteran. 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, the Board 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 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) With regard to the Veteran's claims for service connection for erectile dysfunction and hypertension, these claims have been granted, as discussed below. As such, any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With regard to the Veteran's claim for service connection for a left knee disability, the Board observes 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) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the 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. A May 2006 letter provided all required notice elements, including information on disability ratings and effective dates in compliance with Dingess. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file. The Veteran has not identified any additional private or other treatment records that he felt were relevant to his claim or that he wished for VA to obtain. The record indicates that the Veteran underwent VA examinations to evaluate his claimed left knee disability in November 2006 and June 2012. The reports from those examinations have been included in the claims file for review. The examinations involved a review of the claims file, a thorough examination of the Veteran, and an opinion that was supported by sufficient rationale. Therefore, taken together, the Board finds that the examinations of record are adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Some discussion of the Veteran's personal hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. The issue on appeal was identified. Information was also elicited from the Veteran concerning his contentions regarding the nature and etiology of his left knee complaints. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield, supra. II. Merits of the Claims Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a 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). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2012). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2012); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and certain diseases, such as hypertension, become manifest to a degree of 10 percent or more within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). A 10 percent evaluation is assigned for hypertension when diastolic pressure is predominantly 100 or more or when systolic pressure is predominantly 160 or more or as the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Erectile Dysfunction The Veteran alleges that he currently suffers from ED as a result of the medications he takes for his service-connected PTSD. Therefore, he believes that service connection is warranted on a secondary basis. The medical evidence reveals that the Veteran has been diagnosed with ED. Specifically, VA treatment records note a diagnosis of ED and that the Veteran has been prescribed medication to treat ED. As such, the first element of Wallin is met. The Veteran is service connected for PTSD and has been prescribed various psychotropic medications for the treatment of his PTSD, including Trazodone and Sertraline. The second element of Wallin is also met. With respect to the remaining nexus evidence, the Veteran has been afforded two VA medical opinions regarding the etiology of his ED. The first opinion, dated in June 2012, indicates that the Veteran's ED is at least as likely as not related to the medications prescribed for his service-connected PTSD because such medications can cause ED and the Veteran's mental healthcare provider suggested such a relationship. The August 2012 VA examiner found that it was not at least as likely as not that the Veteran's ED was related to his service-connected PTSD or PTSD medications because other, more likely causes included his history of uncontrolled hypertension, hypertension medications, and a history of alcoholism. The examiner provided no rationale for his opinion that these causes were more likely than the Veteran's PTSD medications. This lack of rationale diminishes the probative value of the August 2012 VA examiner's opinion. In addition to the VA opinions, the medical evidence includes VA treatment records referencing the Veteran's PTSD treatment and complaints of ED. Notably, a September 2009 VA treatment record from the Veteran's treating psychiatrist notes the Veteran's complaints of sexual side effects with Sertraline. The psychiatrist lowered the Veteran's Sertraline dosage in response to these complaints. Although this treatment record does not explicitly state that the Veteran's ED is secondary to his psychiatric medications, it certainly implies it as the psychiatrist lowered the Veteran's medication dosage in response to his complaints of sexual side effects. In light of the June 2012 positive VA opinion linking the Veteran's service-connected PTSD medications with his ED, the supportive VA treatment record, and the lack of sufficiently probative medical evidence to contradict this, the Board finds that the medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current ED is related to his service-connected PTSD. Even if the Board were to accept the August 2012 VA opinion as equal to the June 2012 VA opinion in terms of probative value, the evidence would remain at least in equipoise. As such, the benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for ED is granted on a secondary basis. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Left Knee A review of the medical evidence of record does not establish that the Veteran has a current left knee disability. Although the VA examination reports and treatment records note the Veteran's complaints of left knee pain, none of these have associated his pain with an objective findings or a definitive diagnosis or any underlying disability of the left knee. As noted above, the Veteran was afforded VA examinations to address his left knee in November 2006 and June 2012. The November 2006 VA examiner diagnosed the Veteran with patellofemoral syndrome of the left knee with limited range of motion and pain. Despite this "diagnosis," the examiner did not observe any objective findings, including erythema, edema, or deformity, and noted that the x-rays of the left knee were normal. Although the examiner noted that the Veteran had limitation of flexion of the left knee, he attributed it to his back pain not his left knee pain. In light of the negative x-rays and physical examination, the Board finds that the "diagnosis" of patellofemoral syndrome amounts to a diagnosis of nothing more than pain with no underlying pathology. The June 2012 VA examiner diagnosed the Veteran with left knee strain. However, he also failed to provide any objective findings of underlying pathology to support a diagnosis of anything more than pain. The physical examination of the left knee was normal, other than limited flexion due to pain, and x-rays showed no evidence of arthritis or other significant abnormality. Again, in light of the negative x-rays and physical examination, the Board finds that the "diagnosis" of left knee strain amounts to a diagnosis of nothing more than pain with no underlying pathology. The Board notes that the VA treatment records include other diagnoses, including osteoarthritis and bursitis. However, these diagnoses have not been substantiated by physical findings or diagnostic testing. Although August 2007 and June 2008 VA treatment records note that the Veteran had osteoarthritis in both knees, this is not substantiated by x-ray findings. Notably, the x-rays performed in conjunction with the November 2006 and June 2012 VA examinations showed no evidence of significant degenerative changes. Additionally, the June 2009 VA treatment record indicating that the Veteran's knee pain was most likely due to arthritis is similarly not substantiated by physical findings or diagnostic testing. Rather, all of the physical findings reported in that treatment record are normal, including a finding of full range of motion of the knees. As the diagnoses in these treatment records are not substantiated by physical findings or diagnostic testing, and are in fact inconsistent with the normal physical findings, the Board finds that they are of limited probative value and also amount to diagnoses of nothing more than pain without an underlying pathology. Pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Significantly, the physical examinations performed by the VA examiners at each of the VA examinations, as well as the x-rays provided, found no evidence of a left knee disorder. The Veteran's left knee pain could not be attributed to an underlying pathology or diagnosis other than one amounting to pain. Put another way, the evidence does not show that the Veteran has a current left knee disability or that he has had a chronic disability of the left knee during the pendency of the appeal. As such, the first element of Hickson is not met and service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Even if the Board were to accept that the Veteran's complaints of left knee pain constituted a current disability, his claim would fail as there is no medical opinion linking his current left knee complaints to his conceded in-service left knee injury. The Veteran has been afforded two VA examinations. Although both VA examinations addressed the nature of the Veteran's left knee complaints, only the June 2012 VA examiner provided an opinion on the etiology and any link to service. The June 2012 VA examiner reviewed the claims file and is assumed to have reviewed the Veteran's conceded in service left knee injury. However, he concluded that his left knee complaints were not related to service as the post-service physical examinations and x-ray findings have been normal. There was simply no evidence of a chronic left knee disability that had its onset in service. As such, a medical nexus could not be established and service connection cannot be granted for the Veteran's claimed left knee disability. The only other evidence which purports to link the Veteran's claimed current left knee disability to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran can describe what he experiences (in this case, left knee pain), he is not able to provide competent evidence as to the etiology of his left knee pain or to attribute it to a particular diagnosis or any diagnosis at all. Providing such an opinion requires medical expertise in the identification of orthopedic disorders and the causes of such. The Veteran and his representative have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2012). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran complains of left knee pain since service. The June 2012 VA examiner considered these complaints in forming his opinion. However, he still found that the Veteran's current complaints were not related to his active service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not been diagnosed with any left knee disorder, such as arthritis, that is on the list of chronic diseases. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's conceded in-service left knee injury and his current complaints of left knee pain. Although the Board notes the Veteran's current complaints and conceded in-service injury, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a left knee disability 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 Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Hypertension A review of the Veteran's post-service VA treatment records indicate that he was first diagnosed with hypertension in July 2006, within a year of his November 2005 separation from service. The remaining medical evidence from the year after the Veteran's discharge includes VA treatment records and a November 2006 VA examination. Unfortunately these records and examination report are of limited value in determining whether the Veteran's hypertension became manifest to a compensable degree within the year following separation. The treatment records and examination report include only four blood pressure readings, none of which show diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. The evidence also indicates that the Veteran did not take medication for blood pressure control during this time. Notably, a September 2006 VA treatment record indicated that there was no need for the Veteran to take blood pressure medication at that time. Despite the lack of evidence showing hypertension warranting a compensable rating within a year of discharge, the Board will afford the Veteran the benefit-of-the-doubt and concede that his hypertension did rise to such a level within a year of separation. Accordingly, his claim for service connection for hypertension is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.307, 3.309(a) (2012); Gilbert, supra. ORDER Entitlement to service connection for erectile dysfunction is granted on a secondary basis. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for hypertension is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs