Citation Nr: 1328066 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 06-10 727A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for sexual dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from May 1 to July 15, 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's claim was remanded by the Board in May 2008, January 2010 and March 2012. The Board notes that the Veteran's claim for entitlement to service connection for a back disability was granted by an April 2013 rating decision. Thus, the Board no longer has jurisdiction over such issue. FINDING OF FACT The Veteran does not have a current disorder manifested by sexual dysfunction that is related to active service or is secondary to any service-connected disability. CONCLUSION OF LAW Entitlement to service connection for a disability manifested by sexual dysfunction, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2012); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in December 2004, January 2005, August 2007 and May 2008 that addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. Fully compliant notice, however, was issued in later communication, and the claim was thereafter, most recently, readjudicated in May 2013. Accordingly, any timing deficiency has been cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has reviewed all statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection may be granted for 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. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be awarded for any disability which is due to or the result of, or is otherwise aggravated by, a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In evaluating the claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning that caused death). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he injured his genitalia during an undocumented fall in the showers while in basic training or, in the alternative, experiences sexual dysfunction secondary to his now service-connected back disability. Turning to the evidence of record, the Veteran's service treatment records indicate that the Veteran had substantial treatment for swelling in his feet for the brief period he was on active duty. There is no indication of complaints or treatment concerning the Veteran's genitalia and there is no indication of problems with erections. The Veteran submitted a buddy statement in an October 2004 e-mail, which indicated that the Veteran's buddy witnessed him fall when he came out of the shower. The buddy also indicated that the Veteran went to sick call several times after the fall about his back. There is no indication or contention in the statement concerning a genital injury during the fall. An October 2005 emergency room note from Valley View Regional Hospital indicates that the Veteran was suffering from fever and epididymo-orchitis on the right. The Veteran was afforded a genitourinary examination in April 2011. The Veteran reported that the onset of his sexual disorder was October 2004. He indicated that he had not been able to have or maintain an erection. He was unsure as to whether he still had erection problems as he was no longer married. The examiner indicated that the Veteran's complaints concerning erectile dysfunction were subjective because the objective examination was normal. The examiner opined that it was less likely than not that the Veteran's erectile dysfunction was due to military service as there was no trauma or injury to his genital organs during service and his problems began in October 2004, more than one year after discharge. The examiner believed that the subjective erectile dysfunction was due to the Veteran's obesity and psychological reasons. The spine examination report, also from April 2011, indicates that the Veteran height was 69 inches and his weight was 276 pounds. The Appeals Management Center requested an additional medical opinion concerning the etiology of the Veteran's erectile dysfunction. The opinion, dated in May 2013, indicates that the erectile dysfunction was less than likely permanently aggravated or a result of any event and/or condition that occurred during the Veteran's active service. Also, the Veteran's erectile dysfunction was less likely permanently aggravated or a result of a back condition. The examiner's rationale was that prior physical examination did not support physical findings that would be the etiology of erectile dysfunction. The examiner observed that the prior examiner indicated that the Veteran's erectile dysfunction was likely caused by his obesity. The examiner also reiterated that it was less than likely that any claimed fall with genital injury caused the Veteran's current erectile dysfunction. The rationale was that there was no genital abnormality described at the in-person examination that would result from an injury; there was no finding on examination that would be compatible with residuals of an injury. Based on the evidence described above, the Board finds that service connection for any disability manifested by sexual dysfunction must be denied as the competent medical evidence does not relate any such disorder to military service or to service-connected disability. Indeed, the Veteran expressly denied problems at his separation examination, and the clinical record reveals no treatment or diagnosis for any such problem for more than a year after discharge. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes the recently decided case of Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under VA regulation. 38 C.F.R. § 3.309(a). In this case, the claimed disability is not a chronic disability by definition. Thus, a discussion of whether there has been continuity of symptomatology since service cannot stand as a basis for an award of service connection in this case and the Veteran does not contend that he has had erectile dysfunction since his brief period on active duty. Additionally, the medical evidence of record does not relate erectile problems to active service. Indeed, VA medical opinions, offered following examination of the Veteran and/or after a review of the relevant records, indicates that the disorder is not related to active service, any incident of active service and is not secondary to any service-connected disability, to include his now service-connected back disability, but is more likely than not related to obesity. The May 2013 VA examiner additionally indicated that the Veteran's back disability did not cause or aggravate his erectile dysfunction as the physical manifestations of the Veteran's back disability would not cause erectile dysfunction. The rationale provided was clearly articulated and was based in part on the Veteran's own statements, history and review of the claims file. For these reasons, these opinions are deemed highly probative and have not been refuted elsewhere in the record. The Veteran, through his representative, contended in a post-remand brief dated in June 2013 that the Veteran should be afforded an additional examination because the most recent VA examiner had noted that there was no permanent aggravation. The representative indicated that the aggravation need not be permanent to be service-connected. However, the Board observes that the examiner's statement is essentially unfavorable to the Veteran's claim since by definition, aggravation requires more than temporary exacerbation of symptoms. Aggravation of symptomatology alone does not warrant service connection. 38 C.F.R. §§ 3.303, 3.310. The Veteran himself believes that his erectile dysfunction is related to active service or a service-connected disability. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, due to the passage of time, the reported delayed onset, and range of etiologies possible for erectile dysfunction, the question of causation extends beyond an immediately observable cause-and-effect relationship. As such, the Veteran is not competent to address etiology in the present case. In sum, taking into account all of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for disability manifested by sexual dysfunction is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs