Citation Nr: 1730241	
Decision Date: 07/31/17    Archive Date: 08/04/17

DOCKET NO.  12-34 658	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs(VA) Regional Office(RO) in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected psychiatric disorders. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Morgan, Associate Counsel

INTRODUCTION

The Veteran had active duty service from January 1971 to December 1972.  

The appeal comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision from the RO in Roanoke, Virginia.  

The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in March 2017. A transcript of the hearing is associated with this file. 


FINDING OF FACT

Erectile dysfunction is not etiologically related to service or to any service-connected disability.


CONCLUSION OF LAW

Erectile dysfunction was not incurred in service and was not proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran essentially maintains that his erectile dysfunction should be service connected. However, the Board finds that the evidence of record does not support his claim. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. 
§§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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).  
Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), Barr v. Nicholson, 21 Vet. App. 303 (2007); Hickson v. West, 12 Vet App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999).

Service connection also may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. 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.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).

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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Here, the Veteran's service treatment records (STRs) are silent as to any erectile dysfunction diagnosis or treatment during his military service. In September 2006, 33 years after separation from service in 1972, private medical records show that the Veteran was diagnosed with erectile dysfunction and he was prescribed levitra. At that time his other medications were ciprofloxacin 500mg, lisinopril 10mg, lovastantin 40mg, atenolol 50mg, metformin 500mg, albuterol 90 mcg, aerochamber, and oncology rocky mountain mouthwash. October 2006 private medical records show that his active medical problems were allergic rhinitis, asthma, Diabetes Mellitus Type II, hypertension, erectile dysfunction, organic and lumbar radiculopathy. Since September 2006, he has continuously taken medication for erectile dysfunction.

A December 2010 VA psychiatry examination diagnosed the Veteran with Post-traumatic stress disorder (PTSD) chronic type, panic disorder and dysthymic disorder. He reported having taken valium, prozac and paxil for depression but stopped those medications after being talked out of doing so. He was taking amitriptyline 50mg, an anti-depressant, at night.

In June 2012 VAMC treatment records show that the Veteran was prescribed paroxetine, a psychotropic medication. The evidence of record does not show a prescription for this medication prior to June 2012. A July 2015 VAMC record is the earliest record showing a prescription for nortriptyline, another psychotropic medication.

The Board finds that the Veteran's erectile dysfunction was not incurred in service and is not otherwise related to service. STRs are negative for any complaints, diagnoses, or treatment for erectile dysfunction. In a June 1972 report from the Medical Board the Veteran was found unfit for service due to bronchial asthma. The Medical Board did not reveal any symptoms or diagnosis for erectile dysfunction. The earliest medical record showing treatment for erectile dysfunction is from September 2006 several decades following military service. Therefore, the claim for direct service connection is denied as the evidence does not establish a relationship between the Veteran's current disability of erectile dysfunction and military service. Shedden; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). 

Next, secondary service-connection is established if the Veteran shows that his erectile dysfunction is proximately due to or the result of his service-connected psychiatric disorders. 38 C.F.R. § 3.310. September 2006 private medical records show that the Veteran was prescribed levitra for erectile dysfunction. He has a service-connected psychiatric disability. VAMC treatment records show that the Veteran was prescribed an anti-depressant for sleep in 2010, paroxetine in June 2012 and nortriptyline in approximately July 2015. The evidence does not show that the Veteran's erectile dysfunction is proximately due to or the result of the medications he takes for his service-connected psychiatric disorder. There is a remote time period between when the record shows the diagnosis for erectile dysfunction and when the Veteran began taking medication continuously for his service-connected psychiatric disorders. The two are not within weeks or months of the other. They are indeed years apart. 

The earliest record showing a psychiatric service-connected diagnosis is in 2010. The Veteran had been diagnosed with erectile dysfunction for 4 years by 2010. Therefore, there is no proximate cause relationship between his service-connected disorder and his erectile dysfunction. Id.; see Allen at 439.

The Board finds that the Veteran is competent to describe observable symptoms, such as an inability to have or maintain an erection. Layno, 6 Vet. App. 465. However, the Board finds that his statements regarding the onset of his erectile dysfunction as a result of medication for his service-connected psychiatric disorder is not credible. Barr at 308. The record shows that his diagnosis in 2006 of erectile dysfunction was prior to his psychiatric diagnoses. In September 2009, the Veteran filed a service-connection claim erectile dysfunction among other disabilities. The claim was denied. In December 2010, he filed a Notice of Disagreement (NOD) asserting that his erectile dysfunction was caused by his Diabetes Mellitus Type II. In March 2017 he testified that his erectile dysfunction was caused by his psychotropic medication paroxetine. In April 2017 he submitted documents from WebMD and Mayo Clinic websites showing that a side effect for nortriptyline and paroxetine is erectile dysfunction. The Board finds that this evidence is not supported by any medical evidence from the prescribing physicians that is within the Veteran's file. The private and VAMC treatment records do not show one entry note or record of the Veteran alleging that his erectile dysfunction is a result of his medication for his psychiatric disorder. And as previously noted, the Veteran was diagnosed with  erectile dysfunction many years prior to the prescription of this medication.

The Board finds the evidence submitted by the Veteran in April 2017 to be similar in nature to a generalized medical article or treatise.  Most importantly, it is not probative of whether the Veteran's erectile dysfunction is a proximately due to or the result of the medications for his service-connected psychiatric disorders. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). Here, there is no medical opinion to buttress the purpose for which the list of symptoms was submitted. Therefore, the Board finds the list of symptoms not to be probative.

In sum, the Board finds that the preponderance of the evidence is against a claim for erectile dysfunction on a direct or secondary-service connected basis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).	 

Duty to Notify and Assist

VA's duty to notify was satisfied by a letter on October 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The RO has obtained pertinent medical records including the service treatment records, VA outpatient treatment reports, and private treatment reports identified by 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 his erectile dysfunction claim that has not been obtained.  

In the present claim, there does not exist a reasonable possibility that Social Security Administration (SSA) records could help the Veteran substantiate his claim. Most persuasively, no medical records have not related his erectile dysfunction to military service or to his service connected psychiatric disorders. Therefore, the Board finds no such records would potentially be included in any medical records held by the SSA. Because the SSA records could not reasonably substantiate his claims, the Board finds that VA does not have a duty to attempt to obtain SSA records. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).

The was provided a hearing before the undersigned VLJ in April 2013, via videoconference. The United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103 (c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. Bryant v. Shinseki, the 23 Vet. App. 488 (2010). They consist of (1) the duty to explain fully the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed disorder. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error.

As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546   (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.


ORDER

Service connection for erectile dysfunction, to include as secondary to service-connected psychiatric disorders is denied.




____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs