Citation Nr: 1802000 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-35 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected epididymitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael J. O'Connor, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to August 1982. This matter comes before the Board of Veterans' Appeal (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded this appeal in April 2015 for further development. Specifically, the Board remanded this appeal to the RO for a medical examination to determine whether the Veteran's current condition of ED is related to his service or his service-connected epididymitis. This opinion has been completed and associated with the claims file. The Board again remanded this appeal in December 2016 for further development. Specifically, the Board remanded this appeal to the RO to obtain an addendum medical opinion as to whether the Veteran's condition was worsened or aggravated beyond the natural course of his condition as the result of his service-connected epididymitis. This addendum opinion has been completed and associated with the claims file. FINDINGS OF FACT 1. Erectile dysfunction was not present during the Veteran's active service or for many years thereafter. 2. The evidence does not show that the Veteran's post-service erectile dysfunction is causally related to his active service or any incident therein, or causally related to or aggravated by any service-connected disability. CONCLUSION OF LAW Erectile dysfunction was not incurred in active service, may not be presumed to have been incurred in active service, and is not causally related to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2016); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2016) provides VA's duties to notify and assist a claimant with development of a claim for compensation. See also, 38 C.F.R. §§ 3.102, 3.159 and 3.326 (2015). As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the Veteran under the VCAA. VA's duty to notify was satisfied by February 2013 letter and several statements of the case. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2016); 38 C.F.R. § 3.159 (2015); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a Veteran in the development of the claims. That duty includes assisting the Veteran in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to VA's duty to assist, the Board also finds that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2016); 38 C.F.R. § 3.159 (2015). Neither the Veteran nor his attorney has argued otherwise. The record shows that VA has obtained the Veteran's complete service treatment and personnel records, as well as all available and relevant post-service clinical records which the Veteran has specifically identified and authorized VA to obtain. 38 U.S.C.A. § 5103A(c) (West 2016); 38 C.F.R. § 3.159(c)(2), (3) (2015). The Veteran has also been afforded a VA medical examination in connection with his claim for service connection for erectile dysfunction. 38 C.F.R. § 3.159(c) (4) (2017). The Board finds that the examination report, together with the other evidence of record, contains the necessary findings upon which to decide this issue. See Massey v. Brown, 7 Vet. App. 204 (1994) (holding that VA medical examination reports must provide sufficient reference to the pertinent schedular criteria). The Board also notes that the record does not show, nor has the Veteran contended, that his service-connected erectile dysfunction has increased in severity or otherwise materially changed since the most recent examination was conducted. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). The Board finds that all necessary development as to the issue decided herein has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). Service connection may also 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) (2015). 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) (2015). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for erectile dysfunction (ED) The Veteran reports an in service accident in which he damaged his testicle. He reports that he hit his testicles on a rail while exiting a bunker during a field exercise. He was taken to the hospital and treated. He was diagnosed with traumatic epididymitis. The Veteran seeks service connection for erectile dysfunction, to include as secondary to this service-connected injury. After carefully considering the Veteran's contentions in light of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim. With regard to granting service connection on a direct basis for erectile dysfunction, there is no medical evidence or lay evidence of record reflecting that the Veteran had erectile dysfunction in service, and no competent opinion has related current diagnoses of such a disability to service. The Board has reviewed the Veteran's service treatment records, and have found no evidence of in-service complaints of erectile dysfunction. While the Veteran's service treatment records detail his treatment for traumatic epididymitis, the records do not note any complaints of erectile dysfunction in service. In a May 2007 treatment note, the treating physician noted that the Veteran had erectile dysfunction "for the last 1-2 years," and described it as "partial" and lasting only 5 minutes. In a March 2010 treatment note, the treating physician noted that the Veteran complained that his "erections are not as good as it used to be for the past couple of years." In a March 2012 treatment note, the treating physician noted that the Veteran stated that he has had "ED for the past 15 years and getting progressively worse." The records, taken in their entirety and in the light most favorable to the Veteran, indicate that the onset of the Veteran's symptoms occurred more than 15 years after service. Additionally, the Veteran has not described a continuity of relevant symptomatology since service, nor has he indicated that this disability is due directly to his active duty service. Further, he did not date his symptoms pertaining to these claimed disabilities back to service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). As such, service connection cannot be granted on a direct basis for these claimed disabilities. With regard to granting service connection on a secondary basis, the evidence of record does not support such a grant. The evidence established that that the Veteran had an in-service injury to his testicles. However, the basis of this appeal is whether such an injury could cause the Veteran's currently diagnosed erectile dysfunction. In July 2014, the Veteran underwent a VA examination to determine the etiology of his claimed erectile dysfunction. The examiner found that the Veteran's erectile dysfunction was related to his diabetes mellitus. However, the examiner did not provide a rationale for this finding, nor did he address the issue of whether the condition was related to the Veteran's epididymitis. In a subsequent February 2016 VA examination, the examiner opined that "The Veteran's current erectile dysfunction is less likely than not related to any incident of service, to include post traumatic epididymitis. The ED started around 2005 as per VA medical records (note on 5/7/2007). This is 20+ years after release from service. Also, erectile dysfunction is not a common complication of epididymitis. Thus, based on the time of diagnosis and rarity of this complication, the Veteran's current erectile dysfunction is less likely than not related to any incident of service." See VA Examination, dated February 4, 2016. In an October 2017 VA examination, a medical examiner offered an addendum opinion regarding the etiology of the Veteran's erectile dysfunction. The examiner opined that based on review of the Veteran's electronic folder, previous examinations and the literature, it is less likely than not that his erectile dysfunction has been permanently worsened beyond the normal progression (versus temporary flare-up of symptoms) as a result of the current residuals of the service-connected epididymitis. The examiner added that epididymitis doesn't permanently worsen ED based on review of the literature. See VA Examination, dated October 12, 2017. The Board finds this medical evidence to be highly probative in adjudicating this appeal. The Board finds that this evidence, including the Veteran's service and post-service treatment records and VA examinations, demonstrates that the condition had its onset many years after service. The evidence also indicates that the Veteran's in-service injury did not result in any complaints of erectile dysfunction. Furthermore, the February 2016 examination, with the October 2017 addendum, provides opine with a sound rationale and supporting evidence indicating that the Veteran's erectile dysfunction is not related to his service, or as secondary to a service-connected disability. In summary, the Board finds that the most probative evidence shows that the Veteran's erectile dysfunction was not present during the Veteran's active service or for many years thereafter and the record contains no indication that his post-service erectile dysfunction is causally related to his active service or any established event therein, nor is it casually related to or aggravated by any service-connected disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Board concludes that entitlement to service connection for erectile dysfunction, to include as secondary to service-connected epididymitis, is not warranted. ORDER Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected epididymitis, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs