Citation Nr: 1754628 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-34 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969 during the Vietnam era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for, posttraumatic stress disorder (PTSD), high blood pressure and erectile dysfunction, and granted service connection for ischemic heart disease. The Rating decision also continued ratings for the Veteran's hearing impairment and tinnitus. The Veteran did not appeal the decisions on his hearing impairment and tinnitus. Service connection for PTSD has since been granted. Service connection for hypertension and erectile dysfunction remain on appeal. A Notice of Disagreement was received in August 2013. In November 2013, a Statement of the Case was issued, and, in November 2013, the Veteran filed his substantive appeal (via a VA Form 9). In May 2014, March 2016 and January 2017, the Board remanded the claims on appeal for additional development and the case now returns for further appellate review. In August 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. Subsequent to the most recent adjudication of the Veteran's claim in a May 2017 Supplemental Statement of the Case, the Veteran submitted a waiver of initial RO consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Therefore, any future consideration of the Veteran's claim should take into account the existence of the electronic record. FINDINGS OF FACT 1. Hypertension was not manifest during service, was not manifest within one year of separation, and is not attributable to or related to service. 2. The Veteran does not have a current diagnosis of erectile dysfunction. CONCLUSION OF LAW 1. The criteria for establishing service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing entitlement to service connection for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1101, 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claims and what the evidence in the claims file shows, or fails to show, with respect to those claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. LEGAL CRITERIA Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2017). 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.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). 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; 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). 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). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With chronic diseases shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 38 C.F.R. § 3.303(b). This regulation pertains to "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). The United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). In the case of a Veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation, and to that end, every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as "credible evidence." See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir.1996). However, these provisions deal with the question of whether a particular disease or injury occurred in service; that is, what happened then, and not the question of either current disability or nexus to service, for both of which competent evidence is generally required. In other words, these provisions do not presumptively establish service connection for a combat Veteran; rather, they relax the evidentiary requirements for noting what happened in service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 6 Vet. App. 521, 524 (1996). 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). 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection for hypertension The Veteran asserts that his hypertension is due to military service and/or his service connected ischemic heart disease and acquired psychiatric disorder. See December 2013 VA Form 9 and August 2016 Hearing transcript. The Veteran testified that he was told that his hypertension was related to his service when he was initially diagnosed with hypertension. The Veteran's service treatment records are silent for complaints of and treatments for hypertension. The Veteran reported to his VA providers that he has received treatment for his hypertension from a private clinic since 1999. This was first documented in the Veteran's VA treatment records in September 2010. The February 2017 VA examiner obtained a verbal history from the Veteran regarding his hypertension, during which the Veteran stated that he has had the diagnosis for 20 years, but just began taking pills for it in 1999. The examiner performed a physical examination of the Veteran and diagnosed him with hypertension. The examiner noted that he thoroughly reviewed the Veteran's claims file as well as medical literature, and opined that it is less likely than not that the Veteran's hypertension had its onset in service or is in any way related to his military service because after a thorough review of the Veteran's records, the examiner could not locate any documented evidence of hypertension or its treatment during service or immediately after leaving the service. The February 2017 VA examiner also opined that it is less likely than not that the Veteran's hypertension is due to or resulting from the Veteran's service connected ischemic heart disease and psychiatric disorder, and that the cause of essential hypertension is unknown. The examiner then opined that the Veteran's hypertension was not aggravated beyond its natural progression by an in-service event, injury or illness, and that the Veteran's hypertension most likely did not progress at an abnormally high rate due to as a result of the Veteran's service connected ischemic heart disease or acquired psychiatric disorder. The examiner's rationale stated that the Veteran is having essential hypertension, which is well managed on treatment, and that the current condition of his hypertension is a natural progression, and there is no evidence of permanent aggravation of hypertension. The Board assigns this opinion great probative weight, as it was based on examination of the Veteran, the Veteran's record, and included a rationale for the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 279, 284 (1997). The Veteran meets the first criteria for service connection, as he has a current diagnosis of hypertension from the February 2017 VA examiner. However, the Veteran lacks evidence of an in-service incurrence of hypertension, and a medical nexus, as the record does not show evidence of an in service incurrence, and the VA medical examiner has rendered a negative nexus opinion. The combat provision is not applicable to the Veteran's hypertension claim, as he is not alleging that his hypertension was incurred in service, and as his medical history report to the February 2017 VA examiner indicates that he believes he has had hypertension for the past 20 years, which is a significant amount of time after the Veteran's active duty. Because all of three elements of service connection have not been met, the Veteran is not entitled to a finding of service connection. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2017). See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. The Board has considered the Veteran's own opinion that his hypertension was caused by his service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature." Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran is competent in this case to report his symptoms, but nothing in the record demonstrated that he has received any special training or acquired any medical expertise in evaluating and determining causal connections for the claimed condition. Therefore, a medical expert opinion would be more competent and probative regarding the causation question in this case and has been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Veteran's opinion is outweighed by the findings to the contrary by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). The issue then turns upon whether service connection may be granted on a secondary basis. An adequate showing of secondary service causation requires evidence of a current disability, evidence of a service-connected disability, and medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). As stated above, the Veteran has a current diagnosis of hypertension, which meets the current disability prong for secondary service connection. See February 2017 VA examination. The Veteran is also service connected for an acquired psychiatric disorder variously diagnosed as PTSD and depression, as well as ischemic heart disease. As such, the Veteran meets the second requisite element to prove secondary service connection. However, the Veteran does not fulfil the final criteria for secondary service connection, as no competent evidence has been presented establishing a connection between the current disability and the service-connected disability. As stated above, the Veteran does not have adequate medical expertise in evaluating and determining causal connections for the claimed condition. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Therefore, the Board finds the VA examiner's medical opinion more probative regarding the matter of secondary service connection in this case, as it was based on examination of the Veteran, the Veteran's record, medical literature, and included a rationale for the conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 10 Vet. App. 279, 284 (1997). The Veteran does not meet the requisite criteria for service connection on a presumptive basis, as no evidence shows that his symptoms manifested during service or within a year after his active service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. As the Veteran has not presented evidence meeting the required criteria for direct, secondary or presumptive service connection, his claim for service connection for hypertension must therefore be denied. Service connection for erectile dysfunction In an August 2012 Statement in Support of Claim and at the August 2016 Board hearing, the Veteran asserted that his erectile dysfunction is related to his service connected shell fragment residual wound in the right groin with mild atrophy of the right testicle and his acquired psychiatric disorder. Correspondence dated February 1968 from the Department of the Army Headquarters states that the Veteran received numerous fragmentation wound from an enemy explosive device on 30 November, 1967, while participating in a reconnaissance in force operation in Long Au Province, and that he was wounded in several areas, including the genitals. The Veteran's service treatment records repeatedly document treatment for the shell fragment wounds, and the Veteran notated a groin injury on his April 1969 separation examination. A treatment note from the VA medical center dated July 8, 2014, documents that the Veteran complained of erectile dysfunction and wanted to try Viagra. The Veteran was prescribed sildenafil citrate, but the prescription was listed as expired within one year in the Veteran's active outpatient medication list. The Veteran's spouse submitted a buddy statement dated August 2013, stating that the Veteran experienced sexual dysfunction throughout their 13 years of marriage. During the August 2016 Board hearing, the Veteran testified that he lost his ability to have an erection following a surgery on his testicle in Vietnam, and that his psychiatric diagnoses may also be a contributing factor to the difficulty. See Hearing transcript, p. 12 The Veteran was afforded a VA examination for his claim of erectile dysfunction in February 2017. The examiner noted that the Veteran reported a history of erectile dysfunction for the past few years but that he has not seen any doctor and is not being treated for it. The VA examiner noted that the Veteran refused a physical examination of the penis, testes and epididymis and that the Veteran reported normal anatomy with no deformity or abnormality of those areas. The VA examiner reported that there is no current diagnosis of erectile dysfunction, and that the Veteran's previous complaints of sexual dysfunction are subjective in nature. The Court consistently has held that, under the law, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated, "a Veteran seeking disability benefits must establish ... the existence of a disability [and] a connection between the Veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Here, there is no disputing the Veteran has continually complained of difficulty maintaining an erection. The Veteran is competent to report such difficulty and credible in this regard. However, the VA compensation examiner specifically determined there is no current disability to account for this reported symptom. The Board attaches significant probative value to this opinion and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record to the extent there often has not been any underlying diagnosis, and included consideration of the Veteran's relevant medical history, including his symptoms and responsibilities in service. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). See also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (indicating most of the probative value of an opinion comes from its underlying reasoning, not just from mere review of the record, although that, too, has its importance if evidence in the file may affect the underlying basis of the opinion such as by revealing relevant facts). The VA examiner based the opinion on a review of file, medical texts, and contentions of Veteran. Hence, there were multiple supporting bases of the opinion. The Board finds that the VA examiner's opinion is more probative than the Veteran and his spouse's personal assertions to the contrary because the examiner has medical expertise that the Veteran does not possess. The Veteran and his spouse are certainly competent to report experiencing difficulty maintaining an erection. However, the Veteran later refused a physical examination of that organ. Thus, the most probative evidence establishes there is no present disability. Absent a current diagnosis, service connection is not warranted. Therefore, in the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Therefore, service connection for erectile dysfunction is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for erectile dysfunction is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs