Citation Nr: 1511026 Decision Date: 03/16/15 Archive Date: 03/27/15 DOCKET NO. 08-23 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1968 to November 1975 and from November 1976 to June 1996. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California, which in pertinent part, denied the benefit sought on appeal. On his July 2008 substantive appeal, VA Form-9, the Veteran indicated his desire to testify before a member of the Board during a hearing held at the RO. Later, in a July 2012 correspondence, the Veteran requested that his appeal be decided based on the evidence already of record and stated that he no longer wanted a Board hearing. 38 C.F.R. § 20.704(e) (2014). In August 2012 and December 2013, the Board remanded the matter on appeal to the RO (via the Appeals Management Center (AMC)) for additional development. Pursuant to the Board's remand directives, the Veteran was afforded with a September 2012 VA examination to determine the nature and etiology of his claimed disorder, and a February 2014 supplemental VA medical opinion report was obtained to clarify whether the Veteran's erectile dysfunction was proximately aggravate by his service-connected disability. Collectively, these VA medical reports reflect compliance with the Board's 2012 and 2013 remand directives and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). It appears that the Veteran wishes to reopen his previously denied claims for entitlement to service connection for depression and urinary disorder, both as secondary to his diabetes mellitus disability, and for entitlement to increased rating for diabetes mellitus disability. See February 2015 correspondence. As these issues of been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action During the pendency of the most recent remand, the Veteran's file was scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The preponderance of the competent medical evidence of record is against a finding that the Veteran's current erectile dysfunction had an onset during his period of service or is otherwise directly related to his period of service. 2. The competent medical and lay evidence of record demonstrates that the Veteran's current erectile dysfunction is likely exacerbated by his service-connected diabetes mellitus, hypertension, and peripheral neuropathy, even if not necessarily caused by those service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction as aggravated by service-connected disabilities only have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent letters to the Veteran in June 2006 that addressed of the elements concerning his claims for service connection prior to adjudication of the claim in the September 2006 rating decision. The letter informed the Veteran of what evidence is required to substantiate the claims on direct and secondary bases, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. The Veteran was also informed on how VA determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board also finds that VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his new and material claim decided in the decision below. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Veteran's service treatment records, post-service VA medical reports, along with statements from the Veteran, have been obtained and associated with the claims file. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. In addition, the Veteran was afforded with a VA examination in September 2012. The 2012 VA examination report shows that the VA examiner recorded the Veteran's reported medical history and findings from clinical evaluation. The 2012 VA examiner then provided a medical opinion on the questions of direct and secondary service connection based on a review of the claims folder and supported by a rationale statement. Any deficiency contained in the September 2012 medical conclusion was addressed by the VA examiner in a February 2014 VA medical opinion report. In that report, the VA examiner provided a comprehensive and thorough rationale statement in support of the medical conclusion on secondary causal service connection. The Board finds that the 2014 VA examination report and medical opinions on direct and secondary causal service connection are adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board acknowledges that the 2014 VA examiner stated that he was unable to provide a medical opinion on the level of aggravation to the Veteran's erectile dysfunction caused by his service-connected disabilities without resorting to speculation and without a rationale statement explaining why such opinion could not be provided. Jones v. Shinseki, 23 Vet App 382 (2010) (holding that, in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.). Here, the April 2014 VA examiner failed to provide any rationale for his statement and the reasoning for his statement is not apparent from the record. Regardless, given the Board's favorable decision to award service connection based on secondary aggravation, a remand for another VA medical opinion is not required at this time. The Board finds that it may proceed with adjudication of the claim without prejudice to the Veteran. The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In general, to prevail on the issue of service connection, a claimant must show: "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b). Service connection may be granted on a presumptive basis for certain chronic diseases, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, a disability that is proximately due to or the result of a service-connected injury or disease shall be service connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Establishing service connection on a secondary basis 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. A disability which is aggravated by a service-connected disorder may be service connected, but compensation is only available for the degree to which that condition was made worse by the service-connected condition - only to the degree that the aggravation is shown. 38 C.F.R. § 3.310. In such a situation, VA laws require that the medical evidence must show a baseline level of severity of the nonservice-connected disease or injury, which is established by medical evidence created before the onset of aggravation. Id. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Veteran seeks entitlement to service connection for erectile dysfunction. He contends that his erectile dysfunction is related to medication he took during his 26 years of naval service. In the alternative, he contends that his erectile dysfunction is proximately caused or aggravated by his service-connected diabetes mellitus. The Board will first address the Veteran's claims for service connection on a direct basis prior to considering his claims on a secondary basis. Again, the Board notes that in order to support an award of service connection on direct basis there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and medical nexus between the claimed in-service disease or injury and the current disability. See Shedden, 381 F.3d at 1167. The evidence of record shows that the Veteran has been diagnosed with erectile dysfunction. See VA and military treatment records since January 2005 and VA examination report dated September 2012. As such, element (1), a current disability, has been shown A review of the Veteran's service treatment records do not show any complaints, treatment or diagnosis of erectile dysfunction. The report of his August 1994 examination prior to separation shows that his genitourinary system was evaluated as normal, and he did not indicate any problems indicative of erectile dysfunction on the associated report of medical history. In addition, an August 1994 VA general medical examination report also shows that the Veteran denied any genitourinary system problems and he received a normal male genitalia examination. The first medical evidence of erectile dysfunction is not shown until January 2005, which comes a decade after his separation from his second period of service. Post-service treatment records show that the Veteran was first prescribed medication (Viagra 50 mg) to treat his complaints of erectile dysfunction in 2005. The Veteran continues to take medication to treat his symptoms of erectile dysfunction. Again, there is no evidence of erectile dysfunction until a decade after his separation from service. The record does not demonstrate that the Veteran's current erectile dysfunction manifested well after his separation from service. See 38 C.F.R. §§ 3.303, 3.306, 3.307 and 3.309. As such, in-service disease has not been shown. The Veteran's service treatment records do show that he took a number of medications to treat various medical ailments during his lengthy period of active service, to include aspirin, Tylenol, NSAIA (nonsteroidal anti-inflammatory analgesic), Naproxyn, Motrin, and Ibuprofen. Element (2), in-service injury, has been shown. The remaining question with respect to direct service connection is whether the evidence of record demonstrates element (3) a medical nexus between the Veteran's current diagnosed erectile dysfunction and his in-service injury (use of various medications). Here, the weight of the competent medical evidence is against a finding of a direct medical link between the Veteran's erectile dysfunction and his period of service. In this regard, the September 2012 VA examiner concluded that it was less likely than not that the Veteran's erectile dysfunction was directly related to his period of service, to include medication taken in service. The VA examiner acknowledged the Veteran's contention that he took a number of medications to treat various medical ailments during his period of service, but the VA examiner concluded that those medications did not cause him to develop erectile dysfunction. The VA examiner noted that those medications were taken at least 12 years prior to the Veteran's diagnosis of erectile dysfunction. This medical opinion weighs heavily against the Veteran's claim for entitlement to service connection on a direct basis. The Board acknowledges the record contains a May 2007 private medical statement from Dr. E.H.M., in which it was concluded that the Veteran's erectile dysfunction "may be" related to the medications which he had been taking while still in active military service. However, because Dr. M. used speculative terminology and provided no rationale for the opinion, it is insufficient to establish the necessary nexus between the Veteran's erectile dysfunction and active service. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence merely indicating that a claimed disorder "may or may not" be related to service is too speculative to establish any such relationship); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (A medical statement using the term "could," or in the moving party's case, "may" or "possibly," without supporting clinical data or other rationale, is too speculative in order to provide the degree of certainty required for medical nexus evidence.). Essentially, the 2007 private medical conclusion does not contain any probative value on the question of direct medical nexus to service in this case. In addition, the Veteran has reported history of onset and continuity of his current erectile dysfunction since his period of service. Rather, the medical record clearly demonstrates that the Veteran was first prescribed medication in 2005 to treat his complaints of erectile dysfunction. Accordingly, element (3), a nexus or relationship between the current diagnosed disorder and injury in service, have not been satisfied, and the Veteran's service-connection claim fails on a direct basis. Turning back to the Veteran's primary assertion - entitlement to service connection on a secondary basis, the remaining question is whether the medical evidence supports, or is at least in equipoise as to, the Veteran's assertion that his erectile dysfunction is proximately caused or aggravated by his service-connected diabetes mellitus. See 38 C.F.R. § 3.310. The Board notes that the Veteran is also now service-connected for sleep apnea, hypertension, peripheral neuropathy, and chronic obstructive pulmonary disorder (COPD). Notably, there are two available options to establish service connection on a secondary basis: (1) a causal relationship between service-connected disability and related disorder; or (2) aggravation of related disorder by service-connected disability. 38 C.F.R. § 38 C.F.R. § 3.310. Evidence of baseline disability is necessary to establish entitlement to service connection for aggravation of a nonservice-connected condition by a service-connected condition (regulatory change effective from September 2006). An opinion that something "is not related to" or "is not due to" does not answer the question of aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310(b). Here, the competent medical evidence of record weighs against a finding that the Veteran's erectile dysfunction is caused by his service-connected diabetes mellitus. In this regard, both the September 2012 and February 2014 VA examiners concluded that the Veteran's erectile dysfunction was not caused by his service-connected diabetes mellitus. Both VA examiners stated that their medical conclusion was based on a review of the claims folder that demonstrated that the Veteran's erectile dysfunction had an onset prior to his diagnosis of diabetes mellitus. The Board acknowledges the private medical statement from Dr. E.O. which notes that it is "plausible" that the Veteran's erectile dysfunction is due to his diabetes mellitus. However, this private medical opinion is speculative in nature, and does not contain any probative value on the question of secondary causal relationship. See Obert, 5 Vet. App. at 33; Tirpak, 2 Vet. App. at 611; see also Bloom, 12 Vet. App. at 187. The weight of competent medical evidence is against a finding of a secondary causal link between the Veteran's erectile dysfunction and his service-connected disabilities. None of the competent medical evidence suggests a secondary causal link between the Veteran's erectile dysfunction and his other service-connected disabilities. However, the 2014 VA examiner found that the Veteran's erectile dysfunction was likely aggravated by his service-connected diabetes mellitus, hypertension, and peripheral neuropathy. The 2014 VA examiner found that the Veteran's diabetes mellitus was likely a contributing factor to the Veteran's erectile dysfunction along with his other medication conditions such as hypertension and peripheral neuropathy. However, the 2014 VA examiner was unable to render any opinion on the degree of possible aggravation of the erectile dysfunction by his service-connected disabilities without resorting to speculation. Of record, however, are the VA and military medical records since 2005 when the Veteran was first diagnosed with erectile dysfunction. Notably, these medical records reflect that the Veteran's medication to treat his erectile dysfunction has significantly increased since he was diagnosed diabetes mellitus in 2007, hypertension in 2009, as well as diagnosed with peripheral neuropathy in 2013. The VA treatment records show that the Veteran was first prescribed medication (Viagra 50 mg) to treat his complaints of erectile dysfunction in 2005. His prescription was later changed to Levitra (vardenafil) 10 mg in 2006, which was later increased to 20 mg by 2007. VA treatment records starting in 2012 show that the Veteran's medication for erectile dysfunction was changed to Sildenafil Citrate 100 mg. These records highly suggest that a baseline level of severity of the Veteran's nonservice-connected erectile dysfunction prior to aggravation by his service-connected disabilities. So even if one accepts the Veteran's current erectile dysfunction is not necessarily caused by his service-connected disabilities, there is competent medical evidence that supports a finding of aggravation by his service-connected disabilities as well as sufficient evidence to establish a baseline level of severity, which are grounds for granting secondary service connection on an aggravation basis. See 38 C.F.R. § 3.310; see also Allen, 7 Vet. App. 448. ORDER Entitlement to service connection for erectile dysfunction as aggravated by service-connected disabilities is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs