Citation Nr: 1805712	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  10-11 948	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

H. Fisher, Associate Counsel






INTRODUCTION

The Veteran had honorable active duty service with the United States Army from December 1969 to November 1971, including service in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  Jurisdiction of the record has since transferred to the RO in Atlanta, Georgia.  The Veteran timely perfected an appeal to the Board.

Most recently, in May 2017, the Board remanded this issue for a supplemental medical opinion regarding the etiology of the Veteran's erectile dysfunction.


FINDING OF FACT

The Veteran's erectile dysfunction was not incurred in or otherwise caused by active duty service, to include as due to exposure to herbicidal agents.


CONCLUSION OF LAW

The criteria for service connection for erectile dysfunction, to include as secondary to exposure to herbicidal agents, have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).







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REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VCAA Notice

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

VA has completed the necessary steps in order to meet its duties to notify and assist in this case.  The Veteran has not raised any procedural arguments regarding the notice or assistance provided.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  The Board also finds that the May 2017 remand directives have been substantially complied with.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  Service Connection

The Veteran asserts that he is entitled to service connection for erectile dysfunction, to include as due to herbicide agent exposure in the Republic of Vietnam.  However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from erectile dysfunction that manifested during, or as a result of, active military service, to include as secondary to exposure to herbicidal agents.  

Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service.  38 U.S.C.A. §§ 1110 (West 2014).  A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease.  38 C.F.R. § 3.303 (2017); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in the Republic of Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. § 3.307(a)(6)(iii). 

If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  38 C.F.R. § 3.309(e). 

The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted.  VA has issued several notices in which it was determined that a presumption of service connection based upon exposure to herbicides used in Vietnam should not be extended beyond specific disorders, based upon extensive scientific research.  See, e.g., 68 Fed. Reg. 27630-27641 (May 20, 2003); 67 Fed. Reg. 42600 (June 24, 2002); 66 Fed. Reg. 2376 (Jan. 11, 2001); 64 Fed. Reg. 59232 (Nov. 2, 1999).

Notwithstanding the presumption, service connection for a disability claimed as due to exposure to herbicide agents may be established by showing that a disorder resulting in disability or death was in fact causally linked to such exposure.  See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. § 1113(b) and 1116 and 38 C.F.R. § 3.303.

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465.  Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

The Veteran's enlistment examination in August 1969 did not list erectile dysfunction or a related condition.  In May 1971, the Veteran's service treatment records reflect that he suffered a tearing of his foreskin, and later a sore on his penis.  Medical records reflect a history of tears to his foreskin after sexual contact.  The tear was treated in-country, and no residuals were noted in his November 1971 separation examination.  Similarly, erectile dysfunction was not noted in the separation examination.

The first indication of erectile dysfunction occurred in August 2005 when the Veteran sought treatment at a VA Medical Center (VAMC) for related symptoms.  This is more than 30 years after the Veteran's separation from active duty.  He was diagnosed with erectile dysfunction.  Subsequent post-service medical records are silent with respect to ongoing treatment.  The Veteran reported that his erectile dysfunction was ongoing through this time. 

In an October 2012 VA examination, the report noted an onset of erectile dysfunction in 2006, but the Veteran did not take medication for the condition.  The examiner concluded that the Veteran's erectile dysfunction was less likely than not related to active duty service.  The examiner noted his in-service treatment for the foreskin tear, which he noted was superficial and has no relationship to the Veteran's erectile dysfunction.  The most important causes were organic and cardiovascular.  The examiner also cited neurological, hormonal and drug side effects as other causes of erectile dysfunction.  The Veteran was noted to have hypertension.

In November 2016, a second medical opinion was issued with respect to a possible relationship between erectile dysfunction and herbicide agent exposure.  Unfortunately, the opinion was deemed inadequate for adjudicative purposes.

In July 2017, a supplemental medical opinion was issued.  The examiner determined that the Veteran's erectile dysfunction was less likely than not related to his in-service exposure to herbicide agents.  The examiner reviewed the Veteran's service treatment records, as well as post-service medical records.  The examiner noted that erectile dysfunction usually has a multifactorial etiology.  Organic, physiologic, endocrine and psychogenic factors are involved in the ability to obtain and maintain erections.  Sexual dysfunction is common in men and increases with age.  Studies demonstrate a strong association with age, even when data are adjusted for the confounding effects of other risk factors.  The independent association with aging suggests that vascular changes are contributing factors.  Conditions that may be associated with erectile dysfunction include: diabetes, hypertension, coronary artery disease, as well as neurologic disorders, endocrinopathies and depression.  There is also a strong correlation between hypertension and erectile dysfunction.  Anti-hypertensive medications can also contribute to erectile dysfunction.  Furthermore, the examiner stated that medical literature does not show an etiological or pathophysiological line between herbicide agent exposure and erectile dysfunction.  There is no evidence to suggest that herbicide agent exposure would have any impact on erectile function.  The Veteran has well-established risk factors for erectile dysfunction, including age, hypertension, and obesity.  As such, it is less likely that the Veteran's erectile dysfunction was caused by or permanently aggravated by his service, to include herbicide agent exposure. 

Medical evidence of record does not show erectile dysfunction or related symptomatology during active duty service.  Symptoms did not manifest until over thirty years later, and the Veteran has not contended that he experienced continuous symptoms from discharge to present day.  His separation examination notes no abnormalities, and he stated that he was in good health.  When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence).  In this case, the absence of any medical evidence of treatment or complaints for erectile dysfunction for more than three decades after separation from service tends to establish that the Veteran's current erectile dysfunction was not a result of his military service.  

Furthermore, subsequent VA medical examinations have highlighted the other risk factors for erectile dysfunction, including the Veteran's age, hypertension, and obesity as the more likely causes of the condition.  The most recent examination stated that there has been no medical evidence to establish a nexus between herbicide agent exposure and erectile dysfunction.  Therefore, the competent evidence of record fails to establish any link between the Veteran's current erectile dysfunction and his military service, to include his conceded exposure to herbicidal agents.  

The Board recognizes that the Veteran believes his erectile dysfunction manifested as a result of his active duty service, to include exposure to herbicide agents in Vietnam.  While the Veteran is competent to provide testimony to establish the occurrence of medical symptoms, he is not medically qualified to prove a matter requiring medical expertise.  See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007).  The etiology of erectile dysfunction is a complex medical determination and the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Multiple medical opinions have consistently determined that the etiology of the Veteran's erectile dysfunction is unrelated to his service and exposure to herbicide agents.  Instead, examiners have placed greater weight on the Veteran's other, strongly correlated risk factors, including: age, obesity, and hypertension.  Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's erectile dysfunction is related either to his military service or to his exposure to herbicide agents, the Board ultimately affords the objective medical evidence of record greater probative weight than the lay opinions.

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for erectile dysfunction, to include as due to exposure to herbicide agents, must be denied.


ORDER

Entitlement to service connection for erectile dysfunction, to include as due to herbicide agent exposure is denied.



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs