Citation Nr: 1802362 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-12 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected hemorrhoids. 2. Entitlement to service connection for erectile dysfunction (ED), to include entitlement to compensation for ED under the provisions of 38 U.S.C. § 1151. REPRESENTATION Veteran represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 and September 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In November 2014, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing; a copy of the transcript is of record. The November 2014 Board hearing, in pertinent part, addressed the issues of entitlement to service connection for ED, to include entitlement to compensation under the provisions of 38 U.S.C. § 1151, entitlement to service connection for a gastrointestinal disorder, and entitlement to service connection for an acquired psychiatric disorder. In February 2015, the Board, in pertinent part, remanded these issues for further development. Thereafter, a May 2015 rating decision granted service connection for posttraumatic stress disorder (PTSD), thus entitlement to service connection for an acquired psychiatric disorder is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Also, in February 2015, the Board also remanded the issue of entitlement to an increased evaluation for hemorrhoids for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), which was provided to the Veteran in April 2015. The Veteran timely perfected an appeal thereafter and testified before a different VLJ as to this issue in October 2016. Thus, this issue will be addressed in a subsequent Board decision in accordance with the assigned docket number. Accordingly, the issues of entitlement to service connection for ED, to include entitlement to compensation under the provisions of 38 U.S.C. § 1151 and entitlement to service connection for a gastrointestinal disorder are the issues addressed in this decision. Additional evidence, including VA treatment records, a hearing loss and tinnitus disability benefit questionnaire, and PTSD disability benefits questionnaires, were associated with the claims file subsequent to the most recent, May 2015 supplemental statement of the case issued for the appeal herein. The Veteran did not waive review of this evidence. However, this evidence is either duplicative of other evidence of record or not relevant to the claims herein. Therefore, it is not necessary to remand these claims to the Agency of Original Jurisdiction (AOJ) for consideration of the evidence in the first instance. See 38 C.F.R. § 20.1304 (c) (2017). The issue of entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected hemorrhoids, is addressed in the REMAND portion of the decision below and is REMANDED to AOJ. FINDINGS OF FACT 1. The most probative evidence of record does not demonstrate that the Veteran's ED manifested in service, or was the result of any injury, disease, or event during active service, to include as due to presumed exposure to tactical herbicides. 3. The most probative evidence demonstrates that the Veteran does not have ED related VA treatment consisting of a penile implant and subsequent removal. CONCLUSIONS OF LAW 1. The criteria for service connection for ED are not met. 38 U.S.C. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for compensation benefits under 38 U.S.C. § 1151 for ED, as a result of VA treatment consisting VA treatment consisting of a penile implant and subsequent removal, have not been met. 38 U.S.C. § 1151, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's service records establish as a matter of historical fact that he served within the territorial confines of the Republic of Vietnam during the Vietnam War. Specifically, his service personnel records reflect service in Vietnam from May 1966 to May 1967. In light of this evidence, Veteran has established service within the Republic of Vietnam during the Vietnam War, he is therefore presumed to have been exposed to dioxin-based tactical chemical herbicides (colloquially known as "Agent Orange"). If a veteran were exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e) (2017). However, erectile dysfunction is not among the enumerated diseases. Id. Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has a diagnosis of ED. Specifically, the Veteran's medical records, including a March 2015 male reproductive system conditions disability benefits questionnaire, endorsed a diagnosis of ED. Thus, the Veteran is acknowledged to have ED, the issue before the Board becomes whether his ED is as a result of his active service. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran's service treatment records are silent for diagnoses or complaints related to ED. In this regard, an October 1967 in-service examination, conducted in conjunction with separation from service, did not note any defects or diagnoses including for the genitourinary system as relevant to ED. However, a July 1967 service treatment record reflected the Veteran had a penile cyst excised and an August 1967 follow-up revealed a clean wound. Furthermore, as noted above, the Veteran served in the Republic of Vietnam during the Vietnam War, which entitles him to the presumption of tactical herbicide exposure. Thus, the Board finds the element of the incurrence of an in-service injury is met with regard to the Veteran's active service. However, the Board finds, for the reasons noted below, that the third requirement for service connection, competent evidence of a nexus between the Veteran's ED, and an in-service disease or injury, has not been met. There is no competent, credible clinical evidence of record that the Veteran's ED is causally related to active service, to include as due to tactical herbicide exposure. There is no clinical evidence that the Veteran sought treatment for ED until many years after separation from service. While the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, but such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of appellant's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) Indeed, the March 2015 VA examiner found the Veteran's ED was diagnosed in 1992. However, the March 2015 VA examiner noted the Veteran reported that he had problems since returning from Vietnam with the ability to achieve a "semi-erection" and although he had children after Vietnam, he reported an inability to achieve any erection by about 1986. Thus, as described above, the objective evidence demonstrates the Veteran did not seek treatment for ED until many years after separation from service and also reported an inability to achieve any erection in approximately 1986, many years after separation from service in November 1967. This long gap between his discharge from service and the earliest clinical evidence of ED is considered to be evidence that weighs against his claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, the March 2015 VA examiner opined that the Veteran's ED was less likely than not etiologically related to his active duty service, which includes the July 1967 removal of a penial cyst. In support of such, the March 2015 VA examiner noted the Veteran was documented with hypogonadism and also noted his ED may be related to other factors (to include a history of smoking and alcohol use) but there was no clear evidence that his ED would be related to the cystic lesion in service for the ED, as ED was not documented until the mid-1980s. In addition, ED has not been deemed associated with tactical herbicide exposure, under current VA law. 38 C.F.R. § 3.309 (e). Further, there is no competent evidence that links the Veteran's ED to his presumed tactical herbicide exposure. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the Board finds service connection for ED as due tactical herbicide exposure is not warranted. Furthermore, while VA has not obtained a VA opinion addressing the claim as due to tactical herbicide exposure, the standard for VA to obtain a VA nexus opinion addressing the claim on this basis under McLendon v. Nicholson, 20 Vet. App. 79 (2006), was not satisfied. With respect to a nexus between ED and tactical herbicide exposure, the only evidence of record indicating an association between such is the Veteran's own contentions, to include as alluded to by the Veteran's representative in November 2014 testimony. The Board finds the Veteran's assertions in this regard to be conclusory, generalized lay statements that suggest an etiological nexus between the disability and his active duty service. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Consequently, the Board finds these contentions do not rise to the level of the indication of an association. 38 U.S.C. § 5103A. Therefore, the Board finds that a VA examination and or opinion on this basis is not warranted. McLendon, 20 Vet. App. at 83. Based on the evidence of record presented above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's ED was incurred as a result of an event, injury, or disease during active service or onset during his active service. In essence, there is no persuasive medical evidence of record that provides a nexus between the Veteran's ED and his active service, to include as due to tactical herbicide exposure. Indeed, the opinion of the March 2015 examiner provided in the male reproductive system conditions disability benefits questionnaire was predicated on a full overview of the entire relevant record and was presented by an examiner who was specifically tasked to present a nexus opinion after review of the evidence. The March 2015 VA examiner explained the reasons for his conclusions based review of the record. Thus, the March 2015 VA examiner's opinion is entitled to substantial probative weight. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). In reviewing the Veteran's claim for service connection for ED the Board has reviewed the statements and November 2014 testimony of the Veteran. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is certainly competent to describe the extent of his current symptomatology and the continuity of perceivable symptomatology from service onwards, as related to his ED. However, his assertions of continuity of symptomatology are undermined by the absence of any report of ED symptomatology at separation or until many years after separation from service. Moreover, the Veteran lacks the medical training and expertise to provide a complex medical opinion as to the etiology of his ED, to include as due to tactical herbicide exposure. See Jandreau, 492 F.3d at 1376-77. As such, his opinion is insufficient to provide the requisite nexus. In sum, the Board finds that the ultimate medical conclusion presented in the record is that there is no etiological link relating the Veteran's ED to his active service, to include as due to tactical herbicide exposure. The evidence does not indicate that the Veteran's service was a possible cause of ED, except as such documented the Veteran's own assertions. The March 2015 examiner found that the Veteran's ED was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. Thus, based on the reasons and bases discussed, the Board has considered the benefit of the doubt doctrine, but does not find that the evidence is of such approximate balance as to warrant its application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, entitlement to service connection for ED is denied. 1151 Claim for ED The law provides that compensation may be paid for a qualifying additional disability not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability was: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not recently foreseeable. 38 U.S.C. § 1151 (West 2012). VA regulations provide that benefits under 38 U.S.C. § 1151 (a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (2017). If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. See 38 C.F.R. § 3.361 (c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the Veteran or the Veteran's representative. To establish the proximate cause of an additional disability or death, it must be shown that there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination. Whether the proximate cause of a veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d). The Veteran argued, as in his May 2010 initial claim, that he received a penile implant in 2007 at the Hines VA Medical Center (VAMC) and this implant got infected in April 2010 and was subsequently removed, and due to this removal he now suffers from ED. As noted above, the threshold question in this case is whether there is an additional disability, specifically ED, as a result of VA treatment consisting of the penile implant and subsequent removal. At the outset, the Board notes that the Veteran was competent to describe what he has personally experienced, including ED. See Layno, 6 Vet. App. at 470. Under certain circumstances, a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Jandreau, 492 F.3d at 1376-77. Here the etiology of any ED as a result of VA treatment is a complex medical matter beyond the knowledge of a layperson. Id. It requires specialized training for a determination as to nexus, and is therefore not susceptible of lay opinion. In this regard, a medical professional has greater skill. The Veteran had not been shown to have had medical training nor did he argue he had such medical training. The Veteran underwent a VA genitourinary examination in August 2010. The August 2010 examiner documented the Veteran's initial penile implant for erectile dysfunction was fifteen years prior and that the rod was removed because of pain. The August 2010 examiner noted an implant with a pump was then placed in March of 2007 and that the tip of the implant eroded the urethra and penetrated the skin status post removal of the implant and the tip of implant was retained. The August 2010 examiner found that the preexisting ED was present when the implant was removed. The August 2010 examiner noted the Veteran could not use any medications, injections, implant, or a pump, and therefore, he currently had total ED. The August 2010 examiner opined that the Veteran's ED was not caused or made worse by VA surgical treatment as complete erectile dysfunction was the reason for the surgery in the first place, so the surgery did not cause or worsen the erectile dysfunction. The August 2010 examiner found there was no additional disability of erectile dysfunction due to the surgery, since it was complete before the surgery. As discussed above, the August 2010 VA examiner ultimately opined that ED was not caused by the penile implant surgery. The Board finds the August 2010 examiner's opinion to be significantly probative as, in proffering the opinion, the VA examiner considered the Veteran's lay statements and the relevant clinical findings. The August 2010 VA examiner's opinion was based on medical principles and applied the facts of the case. See Nieves-Rodriguez, 22 Vet. App. at 304. Although the Veteran asserted in his April 2012 substantive appeal, that he had erections prior to his erectile dysfunction surgery, such is contradicted by the Veteran's own report in the March 2015 male reproductive system conditions disability benefits questionnaire which stated the Veteran reported, in part, an inability to achieve any erection by about 1986. Thus, the Board finds that the August 2010 VA examiner's opinion to be more probative than the Veteran's lay assertions as such is consistent with other evidence of record. Furthermore, the August 2010 examiner has experience, education, and training that the Veteran has not shown to possess. As such, the August 2010 examiner's opinion is more probative than the Veteran's lay assertions. As the most probative evidence does not show that the penile implant surgery or subsequent removal actually caused the Veteran's ED, further inquiry into the elements of an 1151 claim are not required, such as proximate causation and fault on the part of VA or an event not reasonably foreseeable. Nonetheless, the Board notes the August 2010 VA examiner further found there was no evidence that any additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the attending VA personnel, or was the result of an event that could not reasonably have been foreseen or anticipated by a competent and prudent health care provider/trainer/examiner and there was no evidence that the VA failed to timely diagnose and properly treat the claimed disease or disability, and there is no evidence that any disability was allowed to continue or to progress. Therefore, weighing the evidence of record, after careful consideration of all procurable and assembled data, the Board finds that the preponderance of the evidence is against compensation under 38 U.S.C. § 1151 for ED, due to VA treatment consisting of a penile implant and subsequent removal. There is no doubt to resolve. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, see also Gilbert, 1 Vet. App. at 55. Accordingly, the claim is denied. ORDER Entitlement to service connection for ED is denied. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for ED, due to VA treatment consisting of a penile implant and subsequent removal, is denied. REMAND With regard to the Veteran's remaining claim for service connection for a gastrointestinal disorder, to include as secondary to service-connected hemorrhoids, the Board finds that a remand is required in order to obtain an addendum medical opinion. Specifically, the February 2015 Board remand, in pertinent part, directed that an opinion as to whether it is at least as likely as not that any gastrointestinal disorder was caused by or aggravated by the Veteran's service-connected hemorrhoids be obtained. A resulting March 2015 stomach and duodenal conditions disability benefit questionnaire, noted in part, that gastroesophageal reflux disease (GERD) was the only upper gastrointestinal diagnosis that has been established in this Veteran and provided a nexus opinion but did not address GERD as secondary to the Veteran's service-connected hemorrhoids. In addition, a March 2015 intestinal conditions disability benefit questionnaire endorsed a diagnosis of diverticulitis with constipation. With respect to aggravation, the March 2015 examiner stated, in part, that constipation could contribute to aggravation of hemorrhoids, it would be based on mere speculation to suggest that the hemorrhoids contributed to constipation. However, the March 2015 examiner did not provide a rationale as to why it would be speculation to make such a determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Thus, a remand for an addendum opinion is warranted to rectify these deficiencies in addressing the Veteran's gastrointestinal on a secondary basis. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Accordingly, the case is REMANDED for the following actions: 1. Obtain a medical opinion from an appropriate VA examiner for the purpose of obtaining an etiological opinion for the any identified gastrointestinal disability as secondary to his service-connected hemorrhoids. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that that any gastrointestinal disability diagnosed proximate to the claim or during the pendency of the claim (to include, but not limited to, diverticulitis with constipation and GERD), is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by his service-connected hemorrhoids. If it is found that any diagnosed gastrointestinal disability is aggravated by the service-connected hemorrhoids, the examiner should identify the baseline level of severity prior to 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. If some of the increase in severity is due to natural progression, the examiner should identify the degree of increase in severity due to natural progression If it is determined that an opinion cannot be satisfactorily determined without another clinical examination of the Veteran, such examination should be scheduled with proper notification of such provided to the Veteran. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 2. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals