Citation Nr: 1606019	
Decision Date: 02/17/16    Archive Date: 03/01/16

DOCKET NO.  13-15 439	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for erectile dysfunction.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

J. Barone, Counsel



INTRODUCTION

The Veteran had active service from July 1971 to June 1972.

This matter came before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In an April 2015 rating decision, the Board reopened claims of entitlement to service connection for a low back disability and left knee disability, and denied those claims on their merits.  The Board also denied service connection for chronic renal failure.  The issue of entitlement to service connection for erectile dysfunction was remanded for initial adjudication, in light of the Veteran's claim of entitlement to special monthly compensation for loss of use of a creative organ.  


FINDING OF FACT

There is no competent evidence of erectile dysfunction.


CONCLUSION OF LAW

Erectile dysfunction was not incurred in service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).  

Letters dated in January 2011 and December 2011 discussed the evidence necessary to support a claim for service connection.  The December 2011 letter also advised the Veteran of the evidence necessary to establish special monthly compensation.  The evidence of record was listed.  The Veteran was informed of the allocation of responsibilities between himself and VA and was also informed of the manner in which VA determines disability ratings and effective dates.  

A May 2015 letter asked the Veteran to specify whether he claimed service connection for erectile dysfunction as directly incurred or aggravated in service, or due to exposure to ionizing radiation exposure.  

The Board finds that the content of the pre-adjudication notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The appellant has been provided with every opportunity to submit evidence and argument in support of his claim.  Further, the Board finds that 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 claim.  

With respect to VA's duty to assist, service, VA, and private treatment records have been obtained and associated with the record.  

The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to this claim.  However, the Board finds that a VA examination is not necessary in order to render a decision in this claim.  There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79   (2006).  In McLendon, the U.S. Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  Id. at 81.  In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service.

The Board finds that there is no evidence of current disability regarding this claim.  The objective evidence of record does not include information as to any complaint, abnormal finding or diagnosis during service; any current diagnosis; or any potential relationship to service.  Accordingly, a VA examination is not warranted.

The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA.

Analysis

As noted by the Board in its April 2015 decision, the Veteran stated in September 2011 that he sought special monthly compensation (SMC) and specified that he wanted "SMC-K award."  In his November 2012 notice of disagreement, he requested SMC due to loss of use, without specifying the body part of which he had lost use.  In his April 2013 substantive appeal, he indicated loss of use of a creative organ.  The Board observed that, to be entitled to SMC for loss of use of a creative organ, service connection must first be established for erectile dysfunction.  This issue was returned to the agency of original jurisdiction (AOJ) for initial adjudication.

Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty.  38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303.  

To establish a right to compensation for a present disability, 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"-the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Service connection 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).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b). 

Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of erectile dysfunction.  

Post-service private and VA treatment records are also negative for any diagnosis or abnormal finding suggestive of erectile dysfunction.  

Upon careful review of the record, the Board has concluded that service connection is not warranted for the claimed erectile dysfunction.  In this regard, there is no indication of a current disability characterized by erectile dysfunction. The medical evidence associated with the record does not disclose a diagnosis of erectile dysfunction.  Although the Veteran has been advised of the evidence necessary to support this claim, he has neither identified nor produced evidence showing a diagnosis of erectile dysfunction.  In the absence of proof of a current disability, there can be no valid claim for service connection.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  

Because no erectile dysfunction disability has been diagnosed, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to service connection; therefore, the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for erectile dysfunction is denied.



____________________________________________
Bethany L. Buck
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs