Citation Nr: 1334085 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 12-33 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to treatment for service-connected posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1972. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2012 rating decision, which denied the Veteran's claim. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT The Veteran's erectile dysfunction is not shown by the competent and probative evidence of record to be causally-related to a disease, injury or event in service, and was neither caused, nor aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. VA satisfied the notification requirements of the VCAA by means of pre-adjudication letter, dated May 2012. This letter afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claims. This letter also satisfied the requirements of Dingess by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). In August 2012, following the initial adjudication of his claim, the Veteran submitted a statement claiming that his erectile dysfunction was the result of his service-connected PTSD. Thereafter, in an August 2012 letter, the Veteran was informed of the types of evidence necessary to substantiate a claim of entitlement to service connection based on an already service-connected disability. The claim was subsequently readjudicated in a November 2012 Statement of the Case. The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as a VA/QTC examination report dated October 2012. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the examination report demonstrates that the examiner reviewed the complete evidence of record, obtained a history of symptomatology and treatment from the Veteran, performed a comprehensive physical evaluation, and provided sound reasons and bases for his opinion. Accordingly, the Board concludes that the examination report is adequate upon which to base a decision in this matter. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although 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 claimant. 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, 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit recently held that, for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis 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) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service- connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially 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.; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran states that his erectile dysfunction began in 1972, shortly after returning home from active duty service in the Republic of Vietnam. He claims that the disorder is either the result of medication he takes for his service-connected PTSD, or is the result of a "sex trauma" involving his encounter with a prostitute during service. See statements, August and October 2012. Review of the Veteran's service treatment records reveals no complaints of, treatment for, or a diagnosis of erectile dysfunction. Although he was shown to have been diagnosed with and treated for gonorrhea in March 1971, there is no probative evidence that this resulted in any residual effects, including erectile dysfunction. The Veteran's January 1972 service separation examination revealed normal findings for the genitourinary system. Review of post-service treatment reports of record show that in November 2001, the Veteran was diagnosed with impotence of organic origin. Subsequent VA treatment reports show he was being treated for the condition with vardenafil hydrochloride (Levitra). See VA treatment records, November 2007. It was also noted that he was taking medication for depression. Id. By means of a November 2009 rating decision, he was granted service connection for PTSD. In October 2012, the Veteran was afforded a VA/QTC examination pursuant to his service connection claim. Again, the Veteran reported that he began to experience erectile dysfunction symptoms in 1972 following military service. Following a comprehensive physical evaluation, the examiner diagnosed the Veteran with erectile dysfunction of unknown etiology, and opined that the condition was less likely than not proximately due to, or the result of, medication for PTSD or the Veteran's sexually transmitted disease in service. In this regard, the examiner explained that, while the Veteran's erectile dysfunction began shortly after returning from Vietnam, it was at least two decades later before he began receiving treatment for PTSD with medication. The examiner further noted that the sexually transmitted disease the Veteran contracted in service was Gonococcal urethritis, which the examiner noted as a disease not known to cause erectile dysfunction. Based on a review of the complete evidence of record, the Board concludes that the probative and competent evidence fails to support the Veteran's claim of entitlement to service connection for erectile dysfunction, to include as secondary to treatment for PTSD. As noted above, although the evidence shows that the Veteran currently suffers from the condition, there is no probative evidence that supports a claim that the disorder manifested during active duty service or that the current condition is in any way related to any aspect of service, including the medication he takes for PTSD. The Board acknowledges that the Veteran is competent to report that he has continued to experience erectile dysfunction symptoms since service. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). As it is within the Veteran's realm of personal knowledge whether he has experienced symptomatology of erectile dysfunction since service, his contention carries some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, even where a veteran asserts continuity of symptomatology since service, the Court has held that generally, medical evidence is ultimately required to establish "a nexus between the continuous symptomatology and the current claimed condition...." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). Although the Veteran contends that he has had erectile dysfunction since service and that it is secondary to his service-connected PTSD, he has submitted no competent medical evidence or opinion to corroborate these assertions. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). The Veteran's opinions are insufficient to provide the requisite nexus between an in-service injury or event and any current disability because, as a lay person, he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); see also Bostain v. West, 11 Vet. App. 124, 127 (1998); Stadin v. Brown, 8 Vet. App. 280, 284 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As such, his statements regarding the etiology of his erectile dysfunction are merely speculation as to a possible cause, as he is not medically-qualified to provide an opinion as to medical causation. Moreover, despite the Veteran's assertions of having experienced erectile dysfunction since 1972, the first evidence of a diagnosis or treatment for the condition was not until November 2001, nearly 30 years after service. While the absence of medical evidence cannot be a dispositive reason for denying a service connection claim, a prolonged period without complaints or symptoms of a disability can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the Veteran's claim. It also is worth noting that since erectile dysfunction is not a chronic disease listed under 38 C.F.R. § 3.309(a), the Veteran cannot establish service connection for this disability on the basis of continued symptomatology since service. In addition to the medical evidence, the Board has also considered the Veteran's personal contention that his erectile dysfunction stems from some aspect of military service. As noted above, the Court has repeatedly held that individual claimants are considered competent to testify to matters that "lend[] [themselves] to observation by a lay witness." See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, although the Veteran is competent to report what comes to him through his senses, there is no evidence that he has medical knowledge or training that would permit him to determine the etiology of his current erectile dysfunction. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, supra. As such, his statements in this regard do not constitute competent medical evidence that the claimed disorder was caused by, or is otherwise related to his military service or a service-connected disorder, including PTSD. Instead, the Board accords greater weight to the opinion of the VA examiner, who, after examining and interviewing the Veteran and reviewing the claims folder, opined that it was less likely than not that his erectile dysfunction was the result of any event in service. Accordingly, the Board concludes that the most probative evidence of record does not support a grant of service connection for erectile dysfunction. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, supra; Ortiz v. Principi, supra. ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to treatment for service-connected PTSD, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs