Citation Nr: 1706267	
Decision Date: 03/01/17    Archive Date: 03/16/17

DOCKET NO.  10-16 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for erectile dysfunction, claimed as a residual of a circumcision and/or vasectomy, or as secondary to service-connected lumbar degenerative disc disease and/or medications taken for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1973 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In January 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge sitting in Washington, D.C.  A transcript of this hearing has been associated with the record.  

In April 2016, the Board dismissed the appeal with respect to the issues of entitlement to service connection for chronic genital pain, right toe disorder, right wrist disorder, left finger disorder, left finger disorder, and right lower leg and knee disorder; granted an initial rating of 10 percent for a scar in the right inguinal area, status post-operative hernia repair, and an initial rating of 10 percent for a scar in the left inguinal area, status post-operative hernia repair; and remanded the issue of entitlement to service connection for erectile dysfunction for additional development and it now returns for further appellate review.

The Board notes that additional VA treatment records and a December 2016 VA examination report referable to the Veteran's back disability have been added to the his file since the issuance of the most recent supplemental statement of the case in September 2016.  The Veteran's representative waived initial Agency of Original Jurisdiction (AOJ) consideration of this newly received evidence in his January 2017 Appellant's Post-Remand Brief.  38 C.F.R. § 20.1304(c) (2016).  Therefore, the Board may properly consider such newly received evidence.
 
In November 2016, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) for an increased rating for his service-connected low back disability.  While it appears that development referable to such claim has been undertaken, this issue has not yet been adjudicated by the AOJ.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.


FINDING OF FACT

Erectile dysfunction is not causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by service-connected lumbar degenerative disc disease and/or medications taken for service-connected PTSD.


CONCLUSION OF LAW

The criteria for service connection for erectile dysfunction are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

In the instant case, VA's duty to notify was satisfied by an October 2008 letter, sent prior to the issuance of the rating decision on appeal, and an April 2016 letter, after which the Veteran's claim was readjudicated in the September 2016 supplemental statement of the case.  See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. §§§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue decided herein has been obtained.  The Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered.  He has not identified any additional, outstanding records that have not been requested or obtained.

The Veteran was also provided VA examinations in April 2009 and June 2016.  The Board finds that the April 2009 VA examination report is inadequate to the extent that the examiner did not offer a clear opinion regarding the etiology of the Veteran's erectile dysfunction.  However, the Board finds that June 2016 VA examination is adequate to decide the issue as it is predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination.  The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed.  Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and/or opinion regarding the issue of entitlement to service connection for erectile dysfunction has been met.

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2016.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.

During the January 2016 hearing, the undersigned Veterans Law Judge noted the issue on appeal.  Additionally, testimony was solicited regarding the in- and post- service experiences the Veteran alleges resulted in his current erectile dysfunction, the type and onset of symptoms, and his contention that his military service and/or service-connected disabilities caused or aggravated his erectile dysfunction.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Furthermore, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  Moreover, the undersigned held the record open for 60 days after the hearing to allow for the submission of additional evidence; however, no additional evidence was added to the record within that time period.  Even so, upon review of the record, to include the Veteran's testimony, the Board remanded the case for further evidentiary development, to include providing appropriate VCAA notice and conducting an additional VA examination.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record.

Furthermore, Board finds there has been substantial compliance with the Board's April 2016 remand directives and no further action in this regard is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)).  In this regard, in April 2016, the matter was remanded in order to afford the Veteran proper VCAA notice regarding secondary service connection and conduct a VA examination.  Subsequently, the Veteran was afforded proper notice in an April 2016 letter and a VA examination was conducted in June 2016.  Therefore, the Board finds that there has been substantial compliance with the Board's April 2016 remand directives, and no further action in this regard is necessary.

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Analysis

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, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In the instant case, erectile dysfunction is not recognized as a chronic disease under VA regulations and, thus presumptive service connection based on chronicity and/or continuity is not warranted.

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  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) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability.  38 C.F.R.  § 3.310(b).

Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature." 

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran seeks service connection for erectile dysfunction, which he relates to service and/or a service-connected disability.  Specifically, the Veteran reports that he was unable to obtain an erection for three to four months after his in-service circumcision.  He further indicates that he has been able to obtain only partial erections since that time.  He reports that, for many years after service, he self-medicated with herbal supplements and did not seek treatment as he could not afford care.  At his Board hearing, the Veteran testified that his erectile dysfunction has worsened with the degeneration of his service-connected back disability and the use of medication for his service-connected PTSD.  He also testified that his treating physician told him that his erectile dysfunction is related to his in-service circumcision.

During military service, the Veteran underwent a vasectomy in October 1977 and a circumcision in February 1991.  A March 18, 1991, follow-up treatment note shows that the Veteran's circumcision was 99 percent healed with irritation during erections.  Service treatment records, including the separation examination, are negative for any complaints of erectile dysfunction; however, the Veteran inquired as to whether he was fertile on November 21, 1989.

After service, in October 2008, the Veteran submitted a service connection claim for erectile dysfunction, which he related to his in-service circumcision.

On VA examination in April 2009, the Veteran reported that he was not able to obtain an erection during the two months following his in-service circumcision.  He also reported that he has since only been able to achieve partial erections and has self-medicated with herbal supplements. The examiner diagnosed erectile dysfunction of unknown at etiology.

In July 2009, the Veteran initially sought treatment for erectile dysfunction.  See VA treatment record (July 16, 2009).  An August 2010 VA treatment record shows that the Veteran questioned whether his psychiatric medications were causing erectile dysfunction; however, the treating clinician noted that lab results show normal testosterone and TSH levels.  A July 2013 VA treatment record shows that the Veteran attributed his erectile dysfunction, at least, in part, to his psychotropic medications; however, the treating clinician noted that the Veteran's impotence has been characterized as organic origin.  The Veteran elected to continue his medications.

A January 2016 VA treatment record shows that the Veteran asked his treating physician to provide a statement that his erectile dysfunction could be related to his in-service circumcision and vasectomy.  The treating physician did not provide the requested statement, and reported that he "explained to [the Veteran] that the 2 surgical procedures were not related to etiology of ED."  See VA treatment record (January 29, 2016).

In April 2016, the Board remanded the case to obtain the VA medical opinion regarding whether the Veteran's erectile dysfunction is related to his in-service circumcision and vasectomy and/or caused or aggravated by his service-connected back disorder and/or medication required to treat his PTSD.

In June 2016, a VA examiner opined that it is less likely than not that the Veteran's erectile dysfunction is related to service, to include his in-service circumcision and vasectomy.  In support of such opinion, he stated that there is no plausible mechanism to explain how removal of foreskin or ligature of the vas deferens would affect the erectile mechanism.  In this regard, he explained that the erectile mechanism is physiologically independent of the foreskin or ligature of the vas deferens.  The examiner further noted that erectile dysfunction was not noted during service.

The VA examiner also opined that it is less likely than not that the Veteran's erectile dysfunction is proximately due to or the result of his service-connected back disability.  In support of such opinion, he stated that the Veteran's back disability does not have a plausible mechanism to cause or permanently aggravate erectile dysfunction as there is no evidence of a spinal cord injury.

The VA examiner also opined that it is less likely than not that the Veteran's erectile dysfunction is proximately due to or the result of his service-connected PTSD, to include medication taken for such disability.  He explained that PTSD medication did not cause the Veteran's erectile dysfunction because the erectile dysfunction existed before the Veteran began his PTSD medication.  The VA examiner further explained that PTSD medication did not permanently aggravate the Veteran's erectile dysfunction as any side effect of medication should be reversible.

In December 2016, the Veteran underwent a VA spine examination.  The examiner diagnosed radiculopathy of the lower extremities but stated that there are no other neurological abnormalities or findings related to the Veteran's back disorder, such as bowel or bladder problems/pathologic reflexes.  The examiner further stated that there are no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's service-connected back disorder.

Here, the Veteran has a current diagnosis of erectile dysfunction.  Further, the record documents his in-service surgeries and he is service-connected for a back disability and PTSD.  Accordingly, this case turns on whether the Veteran's current erectile dysfunction is related to service or caused or aggravated by his service-connected disabilities.

Initially, the Board finds that the Veteran is competent to report being unable to obtain an erection for several months after his February 1991 in-service circumcision and only partial erections thereafter, which is within the realm of his personal experience.  38 C.F.R. § 3.159; see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  However, the Veteran's credibility in reporting such symptoms is diminished by a March 1991 postoperative follow-up note, wherein he reported that he was able to achieve erections.  This affirmative statement directly contradicts his current assertion that he was not able to achieve an erection until two to three months after his circumcision.  See service treatment record (March 18, 1991); Board hearing (January 2016).  Accordingly, the Board finds that the Veteran's report of inability to obtain an erection after his in-service circumcision is not credible, and thus afforded no probative value, as it is in direct conflict with a contemporaneous statement he made after the surgery.

The Board further finds that the Veteran is also competent to report that his primary care provider told him that his erectile dysfunction is related to his in-service vasectomy and circumcision.  However, the Veteran's credibility in reporting this medical opinion is diminished by the January 29, 2016, VA treatment note wherein his treating physician affirmatively stated that his in-service circumcision and vasectomy did not cause his erectile dysfunction.  Accordingly, the Board finds that the Veteran's report that his primary care provider told him that his erectile dysfunction is related to his in-service surgeries is not credible, and thus afforded no probative value, as it is in direct conflict with the primary care provider's written statements.

The Board finds that the etiology of the Veteran's erectile dysfunction, to include whether such is related to his in-service circumcision and vasectomy and/or his service-connected back disability or the medication used to treat his service-connected PTSD, involves complex medical questions that transcend the common knowledge of a lay person.  In that regard, these questions involve surgical procedures; internal neurological and vascular processes; and the permanent side effects of medication.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007).  Additionally, it is well-established that competent medical evidence is generally required to establish a nexus between two disabilities.  See Waters, supra. The etiology of the Veteran's erectile dysfunction is particularly complex as he asserts numerous potential causes.  As noted, the Veteran has not indicated he has specialized medical training that would enable him to be competent to address such complex medical matters.  Accordingly, he is not competent to offer an opinion as to the etiology of his erectile dysfunction and his opinion in this regard is of no probative value.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

In contrast, the Board accords great probative weight to the June 2016 VA examiner's opinions regarding the etiology of the Veteran's erectile dysfunction.  As discussed above, the examiner explained that the Veteran's erectile dysfunction is not related to service, to include his in-service circumcision and vasectomy, or caused or aggravated by his service-connected back disability or medication required for his service-connected PTSD.  The June 2016 medical opinion was rendered by a medical professional who reviewed the evidence of record, including the Veteran's contentions, and supported his conclusions with reasoned analysis and who is competent through education, training, and experience to offer medical opinions. Therefore, the VA examiner's opinion is afforded great probative weight because it is factually accurate, fully articulated, and based on sound reasoning.  See Nieves-Rodriguez, supra; Stefl, supra.

The Board finds that the January 29, 2016, the VA treatment note and the December 2016 VA spine examination report are also probative to the etiology of the Veteran's erectile dysfunction.  In this regard, the January 2016 treatment note explains that the Veteran's erectile dysfunction is not related to his in-service circumcision or vasectomy and the December 2016 VA spinal examination report reflects that the Veteran did not have neurological manifestations, other than radiculopathy, related to his back disability.  Indeed, both opinions were rendered by trained medical professionals familiar with the relevant facts of the case.  Id.  Furthermore, there is no contrary medical opinion.

Based on the foregoing, the Board finds that the Veteran's erectile dysfunction is not causally or etiologically related to any disease, injury, or incident in service or caused or aggravated by his service-connected back disability and/or medications taken for his service-connected PTSD.  Therefore, service connection is not warranted.  In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for erectile dysfunction is denied.



____________________________________________
A. JAEGER
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs