Citation Nr: 1328198 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 09-39 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability. REPRESENTATION The Veteran represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to May 1990, from July 1991 to December 1991, and from June 1993 to January 1998, including service in the Persian Gulf. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran's claim for service connection for erectile dysfunction was first denied by the RO in a rating decision dated in September 2006. The Veteran's service representative submitted a letter in November 2006 that clearly stated the Veteran did not agree with the September 2006 rating decision. The RO then denied the claim in a July 2007 rating decision. In January 2008, the RO issued a rating decision stating that it reopened the claim and then denied the claim on its merits. In January 2009, the Veteran submitted new evidence and requested that his claim of service connection for erectile dysfunction be reopened. In March 2009, the RO denied the claim. It is not clear whether the RO found there was no new and material evidence or whether the RO reopened the claim and then denied it on the merits. The Veteran filed another notice of disagreement which led to the current appeal before the Board. As the RO considered the matter as a claim to reopen, the Board normally has jurisdictional responsibility to consider whether it is proper for a claim to be reopened, and what the RO determined in this regard is irrelevant. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As noted above, however, the Veteran filed a timely notice of disagreement to the first rating decision in September 2006. 38 C.F.R. §§ 20.201, 20.302. The issue is therefore as set forth on the first page of this decision. In April 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In June 2012, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT Erectile dysfunction is caused by the medication prescribed to treat the Veteran's service-connected disabilities. CONCLUSION OF LAW Erectile dysfunction is secondary to a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for erectile dysfunction is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary. 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 means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). The Federal Circuit recently held that continuity of symptomatology under § 3.303(b) applies only to chronic diseases listed in § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Erectile dysfunction is not listed as a disease under § 3.309 as a chronic disease. In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform with Allen; additionally, other substantive changes were made. As the claim was filed before the other substantive changes were made, only the changes that conform to Allen apply. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection requires (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. Wallin v. West, 11 Vet. App. 509, 512 (1998). VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). The Veteran is currently service connected for residuals of an L1 compression fracture with bulging disc, L5-S1, arthritic changes, facet joints, L5-S1, spondylolysis, L5, and osteopenia (low back disability), currently evaluated at 70 percent; mood disorder with depressive features associated with the low back disability, currently rated at 30 percent; chronic strain, thoracic spine associated with the low back disability, currently evaluated at 10 percent; and for gastroesophageal reflux disease (GERD), currently evaluated at 0 (zero) percent. The service treatment records do not show any complaints, treatment, testing, or diagnosis for erectile dysfunction (ED). The separation examination in July 1998 was normal and the Veteran stated he was in good health without any complaints of ED. The first indication of an ED disability is an August 2000 psychological VA examination where the Veteran complained of a decreased libido for the last three months. In April 2007, the Veteran was provided a VA examination for his ED disability. The Veteran stated it began approximately 4 years earlier with difficulty achieving and maintaining an erection. There has not been any morning tumescence for the last three years. He had not used any medication as he was embarrassed to bring the subject up with his medical care provider. The Veteran did not have any urinary symptoms or kidney disease. He had a history of cardiovascular symptoms. The physical examination was normal and a CT scan of the lumbar spine demonstrated bilateral spondylolysis with spondylolisthesis and degenerative disc and joint disease of L5-S1 with a mild to moderate compression deformity at L1. The diagnosis was ED, but the examiner could not form an opinion as to etiology as the Veteran did not complete laboratory studies including hormone levels. In May 2007, the Veteran complained of sexual dysfunction and he had no desire. He was not able to maintain an erection nor did he have a morning erection. VA medical records show that as of May 2008, the Veteran was prescribed Vardenafil for ED. In September 2008, the Veteran had a son with his girlfriend. In a VA examination in September 2010, the Veteran dated the onset of ED to 2006 although the VA examiner noted previously the Veteran dated the onset to 2002. The Veteran noted a gradual decrease in the number of erections and increased problems maintaining the erections. The Veteran's ex-wife was part of the problem as she had Huntington's disease (and was now dead). He had just married the mother of his young son. Early in the relationship, the Veteran had a concern with premature ejaculation, but that had improved. The Veteran was concerned about the length of time he could maintain an erection. He did not have a morning erection without medication. He could get an erection only with medication. The examiner noted the Veteran's testosterone level was 6.9 which is low for the Veteran's age, but the FSH was low normal. The diagnosis was ED based on the medications prescribed for the Veteran but the VA examiner stated it was hard to reconcile the diagnosis of erectile dysfunction when the Veteran was clearly sexually active. Therefore, by history, at least as likely as not the Veteran did not have erectile dysfunction. In April 2012, the Veteran testified that the symptoms from his low back disability became more severe starting around 2000 and he has been prescribed medication to alleviate the symptoms in approximately 2005. He has been told that he will be taking these medications for the rest of his life. Shortly after starting these medications, within 6 months, he began to notice he had ED. He eventually raised the subject with his primary care provider and received the prescription for Vardenafil. He still takes Vardenfill which helps but he still has symptoms of ED. In June 2012, the Veteran was provided a VA examination. In the examination, he stated he had worsening ED starting in 2009 when he had a weak erection with poor penetration. It progressively worsened. After his primary care provider evaluated him, the Veteran was placed on Viagra. There has been considerable improvement and the ED has subsided. He has continuously taken the medication. There were no symptoms of a voiding dysfunction. The physical examination was normal. The diagnosis was ED and the examiner concluded the etiology of the ED was the antidepression medication prescribed for the Veteran's mental health disability. The Veteran also had low testosterone which may be organic in origin. The examiner stated the ED had subsided with significant improvement to the satisfaction of the Veteran's wife. The examiner, however, also concluded the Veteran was not able to achieve an erection sufficient for penetration and ejaculation without medication. After a careful review of the evidence, the Board has concluded that the Veteran has ED, which has resulted from the use of medication that he uses to treat his service connected disabilities. The Veteran has been diagnosed with ED. Further, the Veteran is competent to testify when ED began and how it manifests itself, its severity, and the need for medication. 38 C.F.R. § 3.159 (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.); See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). As to the cause, the Veteran testified that his primary care physician told him that the medications he used to alleviate his low back disability caused his ED. The Veteran as a layperson is competent to report a contemporaneous medical diagnosis made by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has concluded the Veteran is competent, credible and his testimony probative. In addition, the VA examiner in June 2012 also stated the medication prescribed for his service-connected mental health symptoms caused his ED. While the medication has significantly helped alleviate the ED, the June 2012 examiner also noted that the Veteran would have ED without medication. Additionally, even if the Veteran's ED has essentially resolved, service connection is warranted is the disability was present at any point during the claims period. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board is aware that the VA examiner in April 2007 did not determine the etiology of the Veteran's ED but that was based upon an incomplete evaluation as the Veteran had not reported for laboratory testing. Therefore, the Board has placed little, if any, probative value to that opinion. As to the VA examination in September 2010, the examiner gives a contradictory opinion by stating at one point that the Veteran has ED and then at another point states that the Veteran does not have ED. Further, the only rationale for the examiner's conclusion that the Veteran does not have ED is that the Veteran is able to have an active sexual life as a result of medication. The Board notes the questions at issue are the existence of a disability and whether a disability should be service connected. Service connection is based upon either a relationship of a disability to service or a relationship to a service-connected disability. Service connection is not based upon how well medication alleviates the symptoms and manifestations. The Board therefore places less probative value upon the September 2010 VA examiner's opinion. The Board finds that the June 2012 VA examiner's opinion to be highly probative as it presents the medical opinion of a competent expert, informed by review of the claims file, and presented with a persuasive discussion of the examiner's rationale. The Veteran has ED. He also has service connected disabilities that are treated with medications. In the opinion, the expert stated the etiology of the ED is the medication used to treat the Veteran's mental health symptoms. In balancing the competent medical evidence for and against the claim on causation, the opinion of the June 2012 VA expert supports the claim and this evidence outweighs the opinions of the prior VA examiners which oppose the claim. Thus, all elements to establish a claim for a disability secondarily caused by a service connected disability have been established. The Board resolves any reasonable doubt in favor of the Veteran and finds that service connection for ED is warranted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102(2012). ORDER Entitlement to service connection for erectile dysfunction is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs