Citation Nr: 1751842 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-33 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for erectile dysfunction, as secondary to the service-connected disability of diabetes mellitus, type II. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 1962 to December 1966. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In his June 2016 Appeals Form VA 9, the Veteran declined the opportunity for a Board hearing. However, the Veteran appeared at a February 2016 Decision Review Officer (DRO) formal hearing in in Cleveland, Ohio. A transcript of that testimony has been associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. FINDING OF FACT The competent medical evidence of record does not indicate that erectile dysfunction was proximately due to, the result of or aggravated by service-connected diabetes mellitus, type II. CONCLUSION OF LAW The criteria for a grant of service connection for erectile dysfunction, as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310 (a) and (b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. Service Connection Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (1995). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. §3.303(d). Service connection may also be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2016). The evidence must show (1) a current disability exists and (2) the current disability was (a) proximately caused by or (b) proximately aggravated (permanently worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Specifically, 38 C.F.R. § 3.310(b) provides that any increase in severity of a nonservice-connected disease or injury, which is proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the non-service-connected disease or injury. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107 (b). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends that, because his diabetes mellitus, type II has been presumed to be service-connected and diabetes can cause erectile dysfunction, his erectile dysfunction is therefore service-connected as secondary to his service-connected diabetes mellitus, type II. He further contends that, although treatment for his erectile dysfunction preceded diabetes mellitus, type II, erectile dysfunction as a symptom of diabetes often precedes a diabetes diagnosis. He adds that, as his diabetes was presumed service-connected because of possible exposure to a herbicide agent exposure, the associated disability of erectile dysfunction should be presumed as well. The Veteran also asserts that his June VA examination was inadequate, as he was not examined thoroughly and the findings contain inaccuracies. Facts and Analysis Service treatment records (STRs) indicate that in both the Veteran's March 1962 induction examination and his October 1966 separation examination his genitourinary system was noted as "NORMAL" and at no time during service did the Veteran present with complaints or receive treatment and diagnoses of erectile dysfunction. A summary of diagnoses and complaints from the Veteran's May 2004 private treatment records indicates visits for erectile dysfunction between June 1994 and September 1998 and again in September 2003. The September 1998 examination noted the Veteran's erectile dysfunction and prescribed oral medication (Viagra). In March 2001, the Veteran's private treatment progress notes list erectile dysfunction as a secondary diagnosis. The provider noted the Veteran's return visit for erectile dysfunction and also noted that he is a diabetic. A September 2003 visit again listed erectile dysfunction as a secondary diagnosis with a current prescription from Viagra. Subsequent progress notes through January 2006, although documenting ongoing treatment for diabetes mellitus, type II, do not indicate that the Veteran again presented for erectile dysfunction treatment. Between October 2006 and February 2008, the Veteran's progress notes for treatment for diabetes mellitus, type II at Cleveland VA include erectile dysfunction among the Veteran's several disorders in his assessments. The Veteran's May 2016 treatment notes at Cleveland VA include an April 2009 statement of a Licensed Independent Social Worker (LISW), stating that the Veteran's "diabetes has been a direct cause of his erectile dysfunction condition." The April 2009 medical statement of Dr. C. O. states that "[d]iabetes caused [the Veteran's] erectile dysfunction." In June 2010 the Veteran underwent a VA examination, in which he was diagnosed with erectile dysfunction. The VA examiner opined that it is less likely than not that the Veteran's erectile dysfunction was caused by his diabetes mellitus. He explained that the Veteran was diagnosed with erectile dysfunction prior to the diagnosis of his diabetes mellitus disease. An addendum several days later stated that the Veteran's erectile dysfunction has no effects on his usual occupation; he does not receive dialysis treatments; and there is no testicular atrophy. The Veteran's August 2010 submission contains an January 2008 Internet article, which states that "[a]ccording to the Canadian Diabetes Association (CDA) erectile dysfunction (ED) is common for men who have diabetes. Often it's the first symptom that men may notice and the one that leads them to the doctor in the first place. Only after they have sought medical help for ED do they also receive a diagnosis of diabetes." Further clinical details are provided in the article. In April 2017, the Board requested that a medical expert opinion from a urologist. The doctor opined: 1. Based on the factual evidence of record, it is unclear which risk factor specifically caused the ED [erectile dysfunction]. The patient has multiple risk factors including poor health, tobacco use for 25 years, HTN [hypertension], DM [diabetes mellitus], obesity, HLP [hyperlipidemia] and cannabis use. These are all risk factors, and I cannot determine which of many comorbidities caused the ED. 2. There is not a 50% chance that the ED in this patient was caused by the DM. The patient has >7 risk factors for ED. DM may cause and contribute to ED, but in this patient with multiple medical problems it is unclear which specific condition caused the ED. The ED pre-existed the DM. The patient did not have any procedures or surgeries for the ED to support aggravation of this condition. The 2010 Canadian Diabetes Association article states that ED may precede DM. This may be true but since this patient has multiple medical problems which all contribute to ED, it is unclear if there is a relationship between the ED and diagnosis of DM. The Veteran in his March 2008 statement has directed the Board's attention to the fact that he sought medical advice and treatment for symptoms of erectile dysfunction (the above records would seem to indicate July 1994). According to the Veteran, sometime later, after laboratory tests were performed, he was informed that the he had "borderline" diabetes, as well as erectile dysfunction. No medications at that time were prescribed for diabetes. In the effort to establish that his current disability of erectile dysfunction was either proximately caused by or proximately aggravated by a service-connected disability, the Veteran in his statement puts forth the following argument, based on the foregoing facts and evidence: The Veteran's diabetes mellitus, type II, has been determined to be service-connected due to exposure to an herbicide agent exposure during in-country service in the republic of Vietnam; diabetes can cause erectile dysfunction and, therefore, it is a reasonable conclusion that the erectile dysfunction is service-connected, as secondary to diabetes mellitus, type II. The Veteran further asserts that "there is proof the Diabetes can cause E.D." and would seem to refer to the January 2008 Internet article, set forth above. However, the record offers no support for these arguments. For example, December 2007 private treatment notes indicate that in March 2001 Dr. K. F. circled diabetes mellitus as the primary diagnosis of the Veteran's visit and he circled erectile dysfunction as the secondary diagnosis. However, Dr. F. did not elaborate further, provided no explanation and did not again designate erectile dysfunction as a secondary diagnosis after diabetes mellitus in subsequent visits. Similarly, in the Veteran's February 2006 private treatment records indicate that in the Veteran's September 2003 visit Dr. N. S. circled diabetes mellitus as the primary diagnosis of the visit and circled both erectile dysfunction and elevated cholesterol as the secondary diagnoses. Dr. N. S., too, did not elaborate further and provided no explanation; nor did Dr. N. S. again designate erectile dysfunction as a secondary diagnosis to diabetes mellitus in subsequent visits. Additionally, June 2008 VA treatment records indicate that in November 2006 and February 2007 the Veteran attended the facility's Firm Diabetes Group meeting, in which complications of diabetes mellitus were discussed, such as retinopathy, nephropathy, neuropathy, and erectile dysfunction. However, this was only a general discussion which did not pertain directly to the Veteran's medical history or his then current condition and, consequently, nothing directly related to the Veteran's erectile dysfunction was noted. Returning to the Veteran's argument, without clinical evidence from examination and treatment, there is nothing to establish a relationship between the Veteran's diabetes mellitus, type II and erectile dysfunction. The argument simply sets forth the sequence of diagnoses and treatments for these disabilities. As stated above, in an April 2009 medical statement, the Veteran's physician at Cleveland VA stated that the Veteran had been treated for diabetes, type II and "[h]is Diabetes has been a direct cause of his Erectile Dysfunction condition" and a similar statement was given the same month by a VA social worker. Both provided no further explanation or rationale. The Board finds that the doctor's April 2009 medical statement has limited probative value. Bare conclusions, even those made by VA medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions. See Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, the record does not reflect any medical training or expertise of the social worker and her statement receives limited probative value. In contrast, the Board finds that the June 2010 VA examiner's opinion is probative and weighs against the Veteran's claim. As stated above, he opined that "[i]t is less likely than not that the veteran's erectile dysfunction was caused by his diabetes mellitus[.] [T]he veteran was diagnosed with erectile dysfunction prior to the diagnosis of his diabetes mellitus disease." Although the June 2010 VA examiner explains his opinion only by challenging the Veteran's argument by stating that the diagnosis of erectile dysfunction preceded the diagnosis of diabetes mellitus, type II, this opinion and its rationale are not inconsistent with the April 2017 expert opinion of Dr. F. S. set forth above. Moreover, in addressing both the Veteran's argument and the January 2008 Internet article which seems to support it, Dr. F. S. emphasizes that, given the Veteran's seven risk factors in his several current disorders and the absence of clinical evidence otherwise, there is no way to determine which disorder caused or contributed to erectile dysfunction. In noting that the Veteran's erectile dysfunction "pre-existed" diabetes mellitus, she specifically further notes that the Veteran did not have any procedures or surgeries for erectile dysfunction, which would "support the aggravation of this condition." By way of a further argument, the Veteran in his September 2017 statement asserts that disabilities, including erectile dysfunction, associated with presumed service-connected diabetes based on herbicide agent exposure, are routinely presumed to be service-connected on the same basis. The Board first notes that erectile dysfunction is not included among the diseases VA has deemed associated with certain herbicide agents. 38 C.F.R. 3.309 (e). The Veteran is not precluded from establishing service connection based on herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). However, nothing in the Veteran's treatment records indicates a finding that the Veteran's erectile dysfunction was directly caused by herbicide agent exposure. The issue remains only as one in which erectile dysfunction is due to or aggravated by service-connected diabetes and, as discussed at great length above, the record does not provide clinical findings or adequate opinions of such a relationship of the Veteran's diabetes to his erectile dysfunction. Additionally, the Veteran has pointed out in his February 2016 statement and his statements accompanying both his August 2010 and June 2016 VA Forms 9 that the June 2010 VA examiner noted that the Veteran was circumcised. The Veteran states that he was never circumcised. Although not stated directly, it appears the Veteran implies that this mistake is an indication that the examination and its findings are therefore doubtful. Once again, without clinical evidence which can refute the findings of that examination, the June 2010 VA examiner's mistake in and of itself does not pertain directly to the issue addressed in this decision. It may in fact not necessarily indicate carelessness in the procedures and observation of the examination, but merely a human error in entering findings on to a computer-generated document. The Veteran has offered no other reasons to doubt the accuracy and validity of the examination findings or the soundness of the opinion. As indicated above, the Board has carefully considered the Veteran's lay statements, to include not only those discussed, but those submitted between November 2007 and May 2009 as well. The Board has also carefully reviewed his testimony at the February 2016 DRO hearing, as well as his reports during examinations, as they appear throughout the record. As stated earlier in this decision, although lay persons are competent to provide opinions on some medical issues, the specific issue in this case concerning secondary causation and aggravation falls outside the realm of common knowledge of a lay person. The central question in this case, whether erectile dysfunction was caused or aggravated by service or service-connected disability, is a complex medical question, which is the subject of advanced medical knowledge concerning complex biological processes, anatomical relationships and physiological functions within the human body. The Veteran is competent to report symptoms and events he has observed or within his personal knowledge and he is credible in doing so. However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately findings as to the origin of his disability or its relation to a service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board must look to clinical findings when there are contradictory findings or statements inconsistent with the record. The Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the absence of an explicit indication in the contemporaneous evidence of service connection, secondary or otherwise, it must rely on medical findings and opinions. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). As discussed above, although in April 2009 Dr. C. O. stated that the Veteran's diabetes mellitus has been a direct cause of his erectile dysfunction, he provided no rationale whatsoever for this conclusion and no references to the clinical findings. In opining that there was less than a 50 percent chance that the Veteran's erectile dysfunction was caused by diabetes mellitus, the April 2017 opinion of the expert in urology, Dr. F. S., conceded that the manifestation of erectile dysfunction preceded diabetes mellitus, she addressed the Veteran's many risk factors for erectile dysfunction, but she emphasized that it cannot be confirmed which of the Veteran's other disorder may have contributed to erectile dysfunction. She added that the Veteran sought out no procedures and had no operations, which would indicate his erectile dysfunction was being aggravated by another disorder. The June 2010 VA examiner had similarly opined that this relationship was less likely than not. For reasons already stated, the Board assigns significant probative weight to these opinions. The Board finds that the Veteran's erectile dysfunction was not either proximately caused by or proximately aggravated by his service-connected diabetes mellitus, type II. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for erectile dysfunction, as secondary to the service-connected disability of diabetes mellitus, type II, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs