Citation Nr: 1805731 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-49 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a separate rating for erectile dysfunction (ED). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1983 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied a disability rating higher than 20 percent for the Veteran's service-connected low back strain. In April 2016, the Board remanded the Veteran's increased rating claim for service-connected low back strain for additional development. In addition, the Board determined that a separate claim for service connection for ED was raised by the record, and remanded that claim as well. The ED claim was recently remanded again in May 2017, and it now returns to the Board for further adjudication. The Veteran testified before a Veteran's Law Judge (VLJ) who is no longer with the Board as to the original low back claim, a transcript of which is associated with the record. In a November 2015 notice, the Board informed the Veteran that he had the option to have another hearing before a VLJ who would participate in any decision made on his appeal. The Veteran was informed that he had 30 days to indicate whether he wanted an additional hearing however, no response was received. Therefore, the Board will proceed with appellate review of the claim. FINDINGS OF FACT 1. The evidence is against a finding that the Veteran's ED was a neurological abnormality associated with his service-connected low back disability. 2. The evidence is against a finding that the Veteran's ED was caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a separate rating for erectile dysfunction as a neurologic abnormality associated with the Veteran's service-connected low back disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2017). 2. The criteria for a separate rating for erectile dysfunction as secondary to a service-connected disability are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran is service-connected for several disabilities, including posttraumatic stress disorder (PTSD), chronic prostatitis, and radiculopathy of the bilateral lower extremities associated with his service-connected low back disability. In an April 2016 decision that awarded the Veteran an increased disability evaluation for his low back disability, the Board noted that a January 2010 VA spine examination report indicated that the Veteran had ED. VA treatment records also note ED medication. The January 2010 examiner, however, did not indicate whether the Veteran's ED was related to his service-connected low back disability. As such, the Board remanded the issue of a separate evaluation for ED to obtain a VA examiner's opinion regarding the etiology of the Veteran's ED as it related to his low back disability. The matter returned to the Board in May 2017 where it was again remanded for an additional VA examination and opinion as to whether the Veteran's ED was etiologically related to his additional service-connected disabilities. Based on the following, the Board finds that a separate rating for ED is not warranted. The Board notes that disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. Note (1) under the General Rating Formula directs VA to rate separately under an appropriate Diagnostic Code "any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment." Thus, the Board's analysis must focus on whether the Veteran's erectile dysfunction is an "objective neurologic abnormality" associated with his service-connected low back disability. Pursuant to the Boards April 2016 remand, a VA examiner's opinion was sought as to whether the Veteran's ED was related to the Veteran's service connected spine disability. The opinion was provided later that month. The examiner noted that the pudendal nerve, which is responsible for penis erection and ejaculation, is most commonly derived from the sacral spinal nerves, and no abnormal neurologic conditions of the sacral spinal nerves were found in the Veteran's case. Thus, the examiner opined that, since his spine condition (including any radicular symptoms) involves a level higher than the sacral nerves, it is therefore "considered unlikely" that the Veteran's ED is related to his low back disability. The Board also notes that, although the VA examiner in January 2010 noted that the Veteran had ED for the previous 18 months (with no discussion of etiology) additional VA spine examinations that were afforded to the Veteran in May 2012, October 2014, and March 2015, did not note ED or any other neurological abnormalities other than his currently service-connected radiculopathy. Moreover, while the April 2016 VA examiner provided an opinion regarding the relationship between ED and the Veteran's low back disability, no actual examination of the Veteran was performed nor was a diagnosis of ED confirmed. As to the relationship between the Veteran's ED and his remaining service-connected disabilities, service connection may be awarded on a secondary basis for a 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 was either (a) proximately caused by or (b) chronically aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, the April 2016 VA examiner also noted that, according to the online reference UpToDate, that the best predictors of erectile dysfunction are diabetes mellitus, hypertension, obesity, dyslipidemia, cardiovascular disease, smoking, and medication use. As such, the examiner also opined that since none of the Veteran's service-connected conditions met those risk factors for the development of ED, and since he was not taking medication known to cause ED, it was unlikely that the Veteran's ED was secondary to any service-connected disability. In its subsequent May 2017 remand, the Board found that an additional VA examination and opinion was necessary to determine the etiology of the Veteran's ED. Specifically, the examiner was requested to provide separate opinions as to whether the Veteran's ED was caused or aggravated by his service-connected PTSD, low back disability, lower extremity radiculopathy, or chronic prostatitis. However, in a communication with the Veteran on May 30, 2017, the Veteran stated that he did not want the examination performed, and requested it be cancelled. The Board notes that when a claimant fails to report, without good cause, for an examination scheduled in conjunction with an original compensation claim, such as the current claim for a separate rating, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b); Turk v. Peake, 21 Vet. App. 565, 570 (2008). In consideration of the evidence of record, including VA and private treatment records, the Board finds that the preponderance of the evidence is against a finding that the Veteran's ED is related to any service-connected disability, to include his low back disability with associated radiculopathy, PTSD, and prostatitis. Thus, the Veteran's claim must be denied. The Board acknowledges the Veteran's lay assertions that his ED is related to a service-connected disability. However, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the complexity of the medical questions at issue is not capable of lay observation and requires medical expertise to determine. Accordingly, his opinion as to its etiology is not competent medical evidence. The Veteran was afforded the opportunity to undergo an additional VA examination to determine the etiology of his ED, but he declined. None of the competent evidence of record indicates that he has ED related to any service-connected disability. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b). ORDER Entitlement to a separate rating for erectile dysfunction is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs