Citation Nr: 1804897 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-16 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Cooklin, Associate Counsel INTRODUCTION The Veteran served in the Army from May 1987 to August 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision (RD) by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. FINDING OF FACT Given the benefit of the doubt, the Veteran's premature ejaculation disorder is related to prescribed medications for his service connected mental disorder. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction are met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.31, 4.115b, Diagnostic Code (DC) 7522 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria, Factual Background, and Analysis Service connection will be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 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). To establish service connection there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service, 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, 1166-67 (Fed. Cir. 2004). For purposes of 3.303(b), where the veteran asserts entitlement to a chronic disease, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), service connection may be based upon a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Background The Veteran has been service connected for dysthymia with bipolar disorder since 2002. He is presently taking medications for this condition, which in the past have included Prozac, Seroquel, Zoloft, Depakote, and Olanzapine. Presently, it appears he is taking Effexor. Treatment records in December 2011 from the Danville VA Medical Center note the Veteran has erectile dysfunction. In 2012, the Veteran filed a claim for ED. In January 2012, the Veteran submitted a statement describing his sexual problems. There, he indicated he has been suffering from ED for as long as he could remember. He wrote that he was not able to maintain an erection for any significant period of time, "I get two bumps and then I am done." He also noted decreased desire for sex, and listed several drugs he was taking with links to common websites outlining potential side effects. In a September 2013 VA exam, the disability questionnaire reflects the Veteran did not have ED and was able to achieve an erection sufficient for penetration and ejaculation without medication. However, the Veteran reported to the examiner that he had diminished libido and PE since being on mood stabilizers and antidepressants in 1999. No PE timing is noted but the report indicates it was "very quick." The only diagnosis of the Veteran's genitourinary system was for PE, and the Veteran declined an examination of his genitals. In April 2014, the VA medical examiner reported the Veteran had diagnosis of PE (not ED) and opined that it is less likely than not that his PE and diminished libido were predominately due to or aggravated by medications taken for the Veteran's service connected mental disorder. The examiner noted that the Veteran's diminished libido preceded his mental health treatment and his PE documented in 2013. Prior to the 2012 claim, the Veteran did not list PE as a symptom and, concluded the examiner, the PE was unlikely to be predominately due to the medications taken. Additionally, noted the examiner, none of the medications the Veteran was taking for his service connected mental disorder was associated with PE, "according to the literature." The Veteran submitted a side effect fact sheet from the Effexor manufacturer's website. There, "sexual problems" and "sexual side effects" are listed as a common side effects. In an October 2013 RD, service connection was denied on the grounds that the Veteran's diagnosed premature ejaculation condition is not a disability subject to service connection by VA, and finding no persistent disability subject to service connection. Analysis The Veteran contends he should be granted service connection for his erectile dysfunction (ED) or premature ejaculation (PE). Specifically, he maintains the side effects of his medication for his service-connected psychological disorders causes his ED / PE, and therefore, service connection is warranted on a secondary basis. The first criteria under Shedden are whether the Veteran has a present disability. Two differing medical opinions are of record: the 2011 Danville VA report indicating ED, and the 2014 VA report indicating the Veteran has PE. In reviewing the VA medical record and the evidence submitted by the Veteran, it appears that the Veteran has PE. While the Veteran has characterized this as ED, his Statement in Support of Claim does not suggest lack of ability to sexually penetrate; rather, he indicates "I get two bumps and then I am done," indicating he is ejaculating prematurely. Further, in his exam in September 2013, and the subsequent medical opinion issued in January 2014, the Veteran states the apex is reached "very quickly." Disability is defined as "an incapacity or lack of ability to function normally." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st ed. 2007). Hence, the Board concludes the Veteran's ED claim is properly characterized as a PE disorder. The second Shedden factor is incurrence or aggravation of a disease or injury in service. His service treatment records are silent for any sexual or genitourinary complaints, and the Veteran does not argue for direct service connection. Rather, he asserts entitlement to secondary connection for his PE due to the side effects of the drugs he is taking for his service connected mental disorder. Service connection on a secondary basis can be established for disability that is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability either (a) was caused by or (b) is aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). The 2011 Danville VA report, while indicating ED, was not a VA exam and the report failed to disclose any details on the nature of the Veteran's ED. As noted above, the record reflects the nature of the Veteran's ED is in fact PE, a finding that is supported both by the Veteran's statements and the January 2014 medical opinion. The January 2014 examiner found against service connection, indicating "diminished libido preceded treatment and PE documented in 2013." The examiner also noted that temporary or intermittent flare-ups are insufficient to be considered aggravation. However, the examiner provided no evidence to support this conclusion-there is no evidence or statement of the Veteran in the record indicating this a temporary condition of the Veteran. When the Board weighs medical evidence, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The side effect sheet of the manufacturer of Effexor does not elaborate or define what "sexual problems" and "sexual side effects" the drug can induce. The VA examiner noted PE was not among them. The Veteran's January 2012 statement suggested Olanzapine and Topiramate as drugs he was taking, and June 2016 CAPRI records list Topiramate as one of the 19 drugs the Veteran is prescribed. The Veteran's web links for this drug to rxlist.com and drugs.com note PE as a potential side effect. The Veteran's statement in January 2012 indicates he began having PE ever since he began his medications for his mental disorder. He wrote that his nurse would have him take "drug holidays" to see if his libido / PE went away, and that when he did so, he discovered his PE disappeared. However, the consequences of being off his psychiatric medications were simply too great, wrote the Veteran, almost landing him in a mental ward and costing him his employment. With regard to lay evidence, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159 (a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159 (a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, the Board must assess the competence and credibility of lay statements. Barr, Id. In the present case, as a party giving evidence, the Veteran is not competent to make a medical diagnosis. However, he is competent to describe the onset of his symptoms of PE, which he indicated began when he started his medications. His January 2012 statement additionally indicates that when he was taken off his medications as an experiment, his PE disappeared, and returned again when he had to resume his medications. While not an experiment that was subject to the scientific method, the Veteran does in fact have a medical diagnosis of PE. The Board notes the January 2014 VA exam did not accurately reflect when the Veteran began his medications (1999), it did not explore when the Veteran's PE began, and made no reference to Topiramate, which the Veteran's records indicate he is prescribed for mood. In weighing the two VA medical reports and the Veteran's evidence, the Board concludes the evidence is in relative equipoise as to whether the Veteran's medications are causing his PE, and therefore the benefit of the doubt must be given to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for premature ejaculation is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs