Citation Nr: 1325645 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 11-12 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for prostatitis, to include as due to herbicide exposure. 3. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013). The Veteran served on active duty from February 1959 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran had previously requested a videoconference hearing before a Veterans Law Judge (VLJ) of the Board, but withdrew this request in November 2011. The Board remanded the appeal in April 2012. Following the directed case development, the RO (through the Appeals Management Center (AMC)) granted then pending claims for service connection for a left knee disorder and posttraumatic stress disorder (PTSD). The remaining claims listed on the title page are for current appellate disposition. FINDINGS OF FACT 1. The Veteran does not manifest hypertension. 2. The competent evidence weighs against a causal association between prostatitis and military service, including due to presumed herbicide exposure. 3. The competent evidence is against a causal association between erectile dysfunction and military service, and there is no further relationship to medication taken for service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria are not met to establish service connection for hypertension. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. The criteria are not met to establish service connection for prostatitis, to include as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 3. The criteria are not met to establish service connection for erectile dysfunction, to include as secondary to service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist the Claimant The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 38 CFR 3.159(b)(1) (2013). The United States Court of Appeals for Veterans Claims (Court) has further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, including notice to the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Through VCAA notice correspondence dated from August 2009 and October 2009, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice further advised the Veteran of the responsibilities for providing supporting evidence, that VA and the Veteran had joint obligations to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The VCAA notice further explained how VA establishes disability rating and effective date elements of a claim for service connection. The relevant notice information must have been timely sent. The Court in Pelegrini II prescribed as the definition of timely notice the sequence of events whereby VCAA notice is provided in advance of the initial adjudication of the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The VCAA correspondence in this case preceded issuance of the June 2010 RO rating decision on appeal, and thus met the standard for timely notice. The RO/AMC has taken appropriate action to comply with the duty to assist the Veteran with his claim through obtaining service treatment records (STRs), service personnel records, and records of VA outpatient treatment. The Veteran has also undergone several VA Compensation and Pension examinations. The RO/AMC properly implemented the Board's prior remand directives and afforded the Veteran another opportunity to present information essential to substantiate his claim regarding additional STRs and post-service treatment records. The Veteran through his representative has responded that no further records are available. Pursuant to Board remand directive, the RO/AMC has also scheduled a new VA examination of the genitourinary system. There is no indication of any further relevant evidence or information that has not already been obtained. In sum, the record reflects that the facts pertinent to the claim have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the appellant regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claim on the merits. Governing Law And Regulations Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). See also, Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The law further provides that a veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Service in the Republic of Vietnam means actual service in-country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a). Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents. Those diseases that are listed at 38 C.F.R. § 3.309(e) shall be presumptively service-connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service. Generally, the regulation applies where an enumerated disease becomes manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii). The provisions for presumptive service connection nonetheless do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service. See e.g., Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). Background and Analysis Service Connection for Hypertension STRs reflect an assessment of "hypertensive" in August 1973. A follow-up evaluation from September 1973 indicates that the Veteran had been noted on a few occasions to have high blood pressure, however, his blood pressure had usually been normal and the Veteran was asymptomatic. There had been only a couple of elevated readings, and numerous normal values. Blood pressure was taken and measured at 130 / 78. It was concluded that there was no evidence of significant hypertension. An April 1979 VA Compensation and Pension examination was absent for mention of hypertension. The Veteran underwent a February 2010 VA Compensation and Pension examination for hypertension. The Veteran reported that he did not have hypertension, and medical records did not show hypertension as a problem. He did not take any medications for hypertension. On physical examination, blood pressure was measured at 137 / 85, 127 / 86, and 129 / 87 (first day); 123 / 80 and 118 / 80 (second day); 110 /71 and 119 / 75 (third day). The conclusion reached was that the Veteran did not have hypertension. The claim for service connection for hypertension must be denied absent competent indication that the Veteran currently manifests the condition claimed. The February 2010 VA examination ruled out the presence of hypertension based on extensive objective testing and medical history review. Under VA law, the first criterion to establish service connection is competent evidence of the current disability claimed. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). Absent evidence of a current qualifying disability, service connection cannot be substantiated. There is no basis for further inquiry into whether the Veteran has a condition of service origin, without a confirmed initial diagnosis. For these reasons, the claim for service connection for hypertension is being denied. The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service Connection for Prostatitis A March 1963 clinical record entry into the STRs indicates "lumbar area pain, worse over left flank; has urinary frequency." An April 1979 VA examination was absent for mention of prostatitis or other urinary system condition. An October 2009 clinical record from a military medical facility indicates that the Veteran had benign prostatic hypertrophy (BPH). As for his elevated PSA levels, the Veteran was not interested in biopsy, especially since his PSA had been stable over the past many years, and had responded appropriately to medication. On VA examination of the genitourinary system in August 2012, the examiner expressed the following opinion: It is my medical opinion that the Veteran's benign prostatic hypertrophy (which has been treated by surgery) was not caused or aggravated by any incident of service, including his presumed exposure to herbicides while in Vietnam, or by medications prescribed for any service-connected disorder. Rationale: Documented urinary frequency one time in 1963 does not constitute service connecting someone who develops BPH in later life. He was diagnosed with BPH in 2011 at the age of 72. BPH is not a presumptive diagnosis from exposure to herbicides; nor is it caused by medications for arthritis. Benign prostatic hyperplasia is probably a normal part of the aging process in men, caused by changes in hormone balance and in cell growth. The Board is denying the claim for service connection for prostatitis. The competent evidence does not demonstrate that the condition claimed is etiologically related to an incident of service, including the Veteran's presumed exposure to Agent Orange therein as a Vietnam veteran. The condition of prostatitis is not amongst those recognized as presumptively service-connected following Agent Orange exposure under 38 C.F.R. § 3.309(e), and as a result, medical evidence is necessary to demonstrate the requisite causal nexus to service. However, the August 2012 VA examiner's opinion rules out a linkage between prostatitis and service, explaining that the documented episode of one-time urinary frequency in 1963 did not correlate to developing BPH several years later, and that the Veteran's BPH condition was probably due to an aging process. The examiner also did not ascertain a linkage to presumed herbicide exposure. Further ruled out (though not a theory expressly raised by the Veteran) was a linkage between prostatitis and any medication taken for service-connected osteoarthritic conditions. There is no competing medical opinion or other contravening competent evidence of record on the subject of causation. The claim for service connection for prostatitis, including due to herbicide exposure, is being denied. The preponderance of the evidence is unfavorable, and hence the benefit-of-the-doubt doctrine does not apply. Service Connection for Erectile Dysfunction There is no indication or reference within STRs to the condition of erectile dysfunction. On the February 2010 VA genitourinary system examination, the Veteran stated that since 15 years ago he had been having some erectile dysfunction. At that time he went to his doctor and was given Viagra, which was working well, but he was told to stop taking that medication in 1996 due to contraindications with Coumadin. He stopped, and since then was not able to have erections. The VA examiner diagnosed erectile dysfunction, and indicated that this was most likely due to vascular problems. Smoking was a contributory factor. According to the examiner, erectile dysfunction could not be secondary to hypertension, because the Veteran did not have hypertension. Upon re-examination of August 2012, the VA examiner indicated as follows: It is my medical opinion that the Veteran's erectile dysfunction, although etiology unknown, was not caused by his military service (since it did not develop until approximately 8 years after retirement), and is not related to herbicide exposure since this is not a presumptive diagnosis for herbicide exposure, and not related to arthritis medications, as they are not known to cause erectile dysfunction. The persuasive evidence before the Board weighs against finding a causal connection between erectile dysfunction and an incident of service, or service-connected disability. The August 2012 VA examiner provided the most definitive opinion, indicating that the occurrence of the condition claimed was too remote to demonstrate a direct linkage to service, and further that the condition was not known to have been caused by arthritis medications taken for service-connected disabilities. The February 2010 examiner's opinion also identified the nonservice-related etiology of smoking as a significant contributing factor to the development of erectile dysfunction. There is no other medical or competent lay evidence which substantiates the key element of causation. The claim for service connection for erectile dysfunction is being denied. The preponderance of the evidence is unfavorable, and the benefit-of-the-doubt doctrine does not apply. ORDER Service connection for hypertension is denied. Service connection for prostatitis, to include as due to herbicide exposure, is denied. Service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs