Citation Nr: 1440802 Decision Date: 09/12/14 Archive Date: 09/18/14 DOCKET NO. 14-17 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a left hip and leg disability, to include as secondary to a low back disability. 3. Entitlement to service connection for erectile dysfunction. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran had active service from August 1960 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and an August 2012 rating decision from the VARO in St. Petersburg, Florida. The October 2011 rating decision denied service connection for the Veteran's claimed low back, and left hip and leg disabilities. The August 2012 rating decision denied service connection for erectile dysfunction. Jurisdiction over the Veteran's claims file is currently with the VA RO in St. Petersburg, Florida. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a left hip and leg disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran does not have a low back disability due to any incident of his active duty service. 2. The preponderance of the evidence reflects that the Veteran does not have erectile dysfunction due to any incident of his active duty service. CONCLUSIONS OF LAW 1. A low back disability was not incurred or aggravated in service, and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The Veteran's erectile dysfunction was not incurred or aggravated in service. 38 U.S.C.A. §§ 1100, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Prior to initial adjudication, letters dated in August 2010 and December 2011satisfied the duty to notify provisions with regard to the Veteran's service connection claims. His service treatment records (STRs), VA medical treatment records, and indicated private medical records have been obtained. VA examinations adequate for adjudication purposes were provided to the Veteran in connection with his claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims file, and appropriate diagnostic tests. The examiners also provided rationales for the opinion regarding etiology of erectile dysfunction and the conclusion that there was no back condition present. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002 and Supp. 2013); 38 C.F.R. § 3.303 (2013). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2013); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2013). In order to establish service connection for the claimed disorder, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The standard is whether a disability exists at the time the claim was filed. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). 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 three-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, 308 (2007). 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. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2013). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Low Back Disability The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see McClain v. Nicholson, 21 Vet. App. 319 (2007). For the reasons discussed below, the Board finds that the Veteran did not have a low back disability when he filed his claim in August 2010, and has not had one during the appeal period. The medical evidence of record shows that the Veteran has had back pain. His private medical records show that he had back pain in December 1994 after a "coughing spell." In September 2000, he was noted to have back pain caused by the medication Propulsid. A November 2002 x-ray from the Baptist Hospital of Pensacola revealed that five non-rib-bearing lumbar type vertebrae had normal alignment on the coronal and sagittal plane. Straightening of the normal lumbar lordosis was noted. The vertebral body heights were normal. There was intervertebral disc space narrowing minimally at L4-5 and spurring at L5-S1. There were no significant facet degenerative changes and the soft tissues were unremarkable. His sacroiliac joints were symmetric. The radiologist's impression was, "[v]ery mild degree of central spondylosis at L4-L5 and to a lesser extent at L5-S1." The Veteran underwent a VA examination in December 2010. He reported that while serving in Korea, he was hit in the left leg by a jeep while he was a pedestrian. He asserted that his back began to bother him at that time and that his symptoms persisted. The examiner concluded that there were "[n]o objective findings to support a diagnosis for [a] lumbar spine condition...." An x-ray was taken in conjunction with the examination. No sign of fracture or dislocation was seen. The disc spaces were "well preserved," and bone density was adequate. The spinous processes were normal. The pedicles were intact and there were no foreign bodies. There was straightening of the lumbar spine. The radiologist's impression was a normal lumbar spine. The examiner stated that the Veteran had an episode of back pain relative to prostatitis while in service, but did not have mechanical back pain, strain, injury, or trauma. The examiner noted that the Veteran had "some decrease in range of motion...which could be consistent with age...." The examiner concluded that there no objective findings to support a diagnosis of a back condition. Subsequent VA treatment records show that the Veteran complained of back pain. In February 2012 he stated that his back pain had gotten worse in 2009, but that it had been present for 22 years. He stated that he first had back pain when he was hit by a truck in the military and then it "...went away and came back about 22 years ago." The provider diagnosed back pain. The question in this case is whether the Veteran had a back disability at the time he filed his claim in August 2010. Romanowsky, 26 Vet. App. at 293. His post-service treatment records consistently note back pain, including around the time that he filed his claim. However, the only medical record showing a diagnosis of a back disability is the November 2002 x-ray from Baptist Hospital of Pensacola which showed "very mild" central spondylosis. However, a more recent December 2010 x-ray noted a normal lumbar spine. The Board assigns more weight to the more recent December 2010 x-ray which was taken approximately four months after the Veteran filed his claim. The November 2002 private x-ray was taken approximately eight years prior to the date the Veteran filed his claim. Further, the remainder of the private and VA treatment records do not reiterate a diagnosis of central spondylosis. Instead they note back pain only. The findings in the December 2010 x-ray, combined with the remoteness of the November 2002 x-ray and the lack of additional notations of a diagnosis of central spondylosis or any other back condition supports a finding that the Veteran did not have a back disability for VA purposes when he filed his claim or during the appeal period. Instead, the record shows that the Veteran has chronic back pain. Pain alone, without a diagnosis or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). The Board is mindful that functional loss caused by pain is akin to functional loss caused by physical disability. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The December 2010 VA examiner noted that the Veteran had some decrease in range of motion which "...could be consistent with age..." but did not have other objective findings to support a diagnosis. The examiner's use of the word "could" implies that the limitation of motion also "could not" have been caused by age. However, the examiner still concluded that the limitation of motion was not related to a physical disability. His use of speculative language when addressing the cause of limitation of motion is distinguishable from the use of speculative language regarding a nexus opinion. The latter has been deemed not probative evidence in support of a nexus. However, the examiner in this case was not using the word "could" to provide a nexus opinion regarding service connection. Rather, he was discussing a potential cause for the Veteran's limitation of motion before concluding that a disability was not present. Notably, the examiner concluded that there was no deformity, drainage, edema, redness, heat, spasm, additional painful motion, abnormal movement, guarding, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, or pertinent abnormal weight bearing. Moreover, although complaining of pain, the Veteran has not attested to any specific functional loss as the result of his claimed back disability. The record does not show that the Veteran has been diagnosed with a low back disability. Under certain circumstances, lay evidence can be competent and sufficient to establish the etiology or diagnosis of a condition. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313 (2009). However, lay etiological evidence is only competent to the extent that it relies on observable symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran claims that he has a back disability caused by an in-service injury. While the Veteran is certainly capable of observing his own pain, he is not competent to determine its cause. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, by his own assertion, he hurt his back in service, had persistent back pain that subsequently resolved and did not return until approximately 22 years prior to 2012 - approximately 1990. Therefore, there was a pause in his symptoms, rendering it more difficult for him to determine the cause. Accordingly, the preponderance of the evidence of record does not show that the Veteran has a diagnosis for VA purposes of a low back disability which is related to active service. Therefore, the Board finds that the service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Erectile Dysfunction The Veteran has been diagnosed with erectile dysfunction during the appeal period, satisfying the first element of a service connection claim. Shedden, 381 F.3d at 1166-67. His STRs show repeated treatments for urethritis due to gonococcus as well as an episode of prostatitis in September 1961. His March 1962 and June 1962 separation examinations note right testicle atrophy. He also had testicle pain in April 1961 and June 1961. Affording the Veteran the benefit of the doubt, the second element of a service connection claim is met. Id. A December 1994 private medical record from Dr. J. C. noted that the Veteran had "nearly total impotence..." but had "... in the past been quite sexually active though noted some decline back in 1990...." This medical evidence provides some probative evidence against the Veteran's claim because it shows that erectile dysfunction did not manifest until nearly 30 years after his separation from service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a persistence of symptoms and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran underwent a VA examination for erectile dysfunction in August 2012. He reported urethral discharge in service. He stated that he began to have erectile dysfunction in his 30s, but that while he was in his 20s he could have sex three to four times per day. The examiner reviewed the Veteran's claims file and noted the several instances of treatment for gonorrhea, as well as episodes of urethral discharge and urethritis. The examiner noted that the Veteran had right testicle atrophy on separation. The examiner diagnosed erectile dysfunction and noted that it was first diagnosed in 1990. The examiner concluded that erectile dysfunction was less likely as not caused by the Veteran's urethral discharge or right testicle atrophy. In addition to noting that the Veteran did not have erectile dysfunction in service, the Veteran's private medical evidence noted that he had been "sexually quite active" until 1990. The examiner stated that the Veteran's right testicular atrophy was caused by childhood mumps. The examiner noted that his right testicle was 1/3 less than normal size, but that this was consistent with the Veteran's need for testosterone for hypogonadism in the past and was therefore unrelated to his right testicular atrophy. Further, the examiner found that the etiologies of the Veteran's erectile dysfunction were smoking, hypertension, medications, age, and low testosterone, as opposed to his in-service urethral discharge from gonorrhea and his right testicle atrophy. The Board finds that the August 2012 VA examiner's opinion and rationale provides probative evidence against the Veteran's claim. In his September 2012 Notice of Disagreement, the Veteran stated that the private evidence from Dr. J. C. noting a decline in sexual function in 1990 was "...not totally true[,] I was not QUITE [sic] sexually active. I was still sexually active; however, I was still suffering from erectile dysfunction." The Veteran is competent to describe observable symptoms, such as an inability to have an erection. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran reported having erectile dysfunction prior to 1990, the Board finds his statement credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, he did not provide an approximate date of onset of symptoms and therefore this evidence does is not afforded much probative weight in support of his claim. In his May 2014 VA Form 9, the Veteran specifically stated that he had erectile dysfunction while he was on active duty and that it had persisted since that time. The Veteran is competent to describe observable symptoms, such as an inability to have an erection. Layno, 6 Vet. App. 465. However, his statement regarding the onset of erectile dysfunction while on active duty is not credible. Barr, 21 Vet. App. at 308. At his August 2012 VA examination, the Veteran reported that his erectile dysfunction began in his 30s, and that while he was in his 20s he could have sex three to four times per day. The Board notes that the Veteran was born in 1937 and was discharged from service in 1962 at age 25. Therefore, by the Veteran's own report to the VA examiner, his erectile dysfunction did not manifest until at least five years after he separated from service. The Veteran did not assert that he had erectile dysfunction in service until after his claim had been denied. This diminishes his credibility. Therefore, his assertion that he had erectile dysfunction on active duty that persisted since that time is not credible or probative evidence in support of his claim. In this case, the medical evidence is more probative than the lay evidence. The Board finds that the preponderance of the evidence is against service connection for erectile dysfunction. 38 U.S.C.A. § 5107(b). The appeal is denied. ORDER Service connection for a low back disability is denied. Service connection for erectile dysfunction is denied. REMAND The Veteran has solely asserted that his left hip and leg disability was caused by his back disability, for which service connection has been denied. However, a September 2010 VA treatment record notes that the Veteran used Advil most days for a hip injury on the left side he received in Korea. Therefore, the issue of direct service connection has been reasonably raised by the record. Robinson v. Peake, 21 Vet. App. 545 (2008). An examination is needed because there is an indication that the Veteran's hip and leg disability may be related to service, but the record is insufficient for the Board to adjudicate a claim based upon direct service connection. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his left hip and leg disability. The entire electronic claims file (including records contained in both Virtual VA and VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b) In providing the requested opinion, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence in the service treatment records. c) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left hip and leg disability began during active service; is related to any incident of service; or, if arthritis is diagnosed, began within one year after discharge from active service. d) In providing the requested opinion, the examiner must address the Veteran's lay assertions. The Veteran's lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. The AOJ must review the claims file and ensure that the foregoing development action has completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs