Citation Nr: 18147623 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-41 000 DATE: November 5, 2018 ORDER Entitlement to service connection for erectile dysfunction to include as secondary to service-connected residuals of prostate cancer and diabetes mellitus is denied. REMANDED Entitlement to a rating in excess of 20 percent disabling prior to October 31, 2014, and in excess of 60 percent disabling thereafter for service connected residuals of prostate cancer is remanded. FINDING OF FACT Erectile dysfunction was not manifested during service, and the Veteran’s current erectile dysfunction is not shown to be related to his service, or to have been caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for erectile dysfunction to include as secondary to service-connected residuals of prostate cancer and diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1966 to July 1968, to include service in the Republic of Vietnam from December 1966 to December 1967. Entitlement to service connection for erectile dysfunction to include as secondary to service-connected residuals of prostate cancer and diabetes mellitus. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303 (b). Certain chronic diseases may be presumed to be service connected if manifested to a compensable degree within a specified period of time post-service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Certain diseases may be service connected on a presumptive basis, as due to exposure to herbicides/Agent Orange, if manifested in a Veteran who served in Vietnam during the Vietnam Era (or a Veteran who is otherwise shown to have been exposed to herbicides in service). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). To substantiate a claim of service connection, there must be evidence of: (1) a current 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 in service. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The Veteran alternatively claims that his erectile dysfunction disability is secondary to already service-connected disabilities. Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a secondary service connection claim, the Veteran must show: (1) a present disability (for which service connection is sought); (2) a service-connected disability; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran’s service personnel records reflect that he served in Vietnam during the Vietnam Era. By virtue of such service, he is entitled to consideration of his claim under the presumptive provisions of 38 U.S.C. § 1116. He has established service connection for coronary artery disease (CAD), diabetes mellitus, type 2, and residuals of prostate cancer all as due to exposure to herbicides. The Veteran’s STRs are silent for any complaints, treatment, or diagnoses related to erectile dysfunction. Post-service treatment records reflect that the Veteran was diagnosed with erectile dysfunction in 2001. In August 2009 the Veteran underwent a Diabetes Mellitus examination. The examiner found that the Veteran suffered from diabetes mellitus and erectile dysfunction. However, the examiner opined that the Veteran’s erectile dysfunction was not caused by his diabetes mellitus, but more likely due to his hypertension and aging. In October 2014, the Veteran underwent a VA Male Reproductive System examination. The examiner opined that the Veteran’s erectile dysfunction was less likely than not proximately due to or the result of his service-connected residuals of prostate cancer. The examiner noted that a review of the record reflected that the Veteran had been diagnosed with erectile dysfunction in 2001, which was 8 years prior to his diagnosis of prostate cancer. The examiner also provided the opinion that the Veteran’s erectile dysfunction had not been worsened or aggravated beyond its normal progression by his prostate cancer or treatment, rather the examiner stated that the Veteran’s erectile dysfunction was the result of aging. In January 2016, the Veteran underwent a VA Prostate Cancer examination. The examiner found after a thorough review of the record, that the Veteran’s erectile dysfunction had not been caused or aggravated beyond its natural progression by the Veteran’s prostate cancer or his treatment for prostate cancer. The examiner noted that the Veteran had been diagnosed with and received treatment for erectile dysfunction for several years prior to his development of prostate cancer. Therefore, the examiner stated that the Veteran’s erectile dysfunction was not caused by his cancer as it had pre-existed it. Rather, the examiner found that the Veteran’s erectile dysfunction was the result of natural aging. In July 2017 an addendum opinion was obtained. The examiner noted that the Veteran had been diagnosed with erectile dysfunction in 2001 and prescribed medication. The examiner also noted that the Veteran was diagnosed with diabetes mellitus in March 2009. The examiner stated that the Veteran’s erectile dysfunction was not aggravated beyond its normal progression by the Veteran’s diabetes mellitus. It is not in dispute that the Veteran has current erectile dysfunction; post-service treatment records clearly document a diagnosis of erectile dysfunction. The Board notes that the Veteran’s diagnosis was in the 2001 (approximately 33 years after service), therefore, service connection for erectile dysfunction on the basis that it had its onset in service and persisted is not warranted. Furthermore, the record does not suggest, as there is no incident or injury in service, and the Veteran has not alleged that his erectile dysfunction is otherwise directly related to his service. Therefore, service connection on a direct basis is not warranted. Furthermore, erectile dysfunction is not listed as a chronic disease under 38 C.F.R. § 3.309 (a); therefore, it does not fall within the purview of the chronic disease presumptions afforded under 38 U.S.C. § 1112. Similarly, erectile dysfunction is also not listed under 38 C.F.R. § 3.309 (e) as an enumerated disease presumed to be due to exposure to herbicides. Thus, service connection for such disability on a presumptive basis under 38 U.S.C. § 1116 is also not warranted. While the Veteran may nonetheless substantiate his claim by affirmative evidence of a causal relationship between his erectile dysfunction and exposure to herbicides, he has presented none, and no such relationship is suggested by the record. Therefore, service connection for erectile dysfunction on the basis that it is related to exposure to herbicides during service is also not warranted. What remains for consideration is whether the Veteran’s erectile dysfunction is secondary to a service-connected disability. His specific allegations in this respect are that his erectile dysfunction is due to his service-connected residuals of prostate cancer and/or his service-connected diabetes mellitus. The Board finds the VA examiners’ opinions dispositive on this issue. All of the pertinent opinions of record have found that the Veteran’s erectile dysfunction was not caused or aggravated by his service-connected conditions. Furthermore, the examiners provided thorough explanations and well supported rationales for their determinations. Therefore, the Board finds them probative and absent evidence to the contrary (there are no contrary opinions of record), persuasive. The Board is cognizant of the Veteran’s allegations, however as a layperson, he is not competent to offer an opinion regarding a nexus between erectile dysfunction and any of his service-connected disabilities. Jandreau v Nicholson, 492 F.3d 1372, 1377 (2007). Thus, service connection for erectile dysfunction as secondary to a service-connected disability is also not warranted. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent disabling prior to October 31, 2014, and in excess of 60 percent disabling thereafter, for service connected residuals of prostate cancer is remanded. Relevant to the Veteran’s claim for an increased rating for his service-connected residuals of prostate cancer, the Court has held that, where the record does not adequately reveal the current state of a claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The record reflects that the Veteran was most recently afforded a VA Prostate Cancer examination in January 2016. The Board finds that a contemporaneous examination is necessary as the Veteran has alleged significantly worsening symptoms since his last VA examination. Specifically, the Veteran has alleged that his condition is far worse than is represented by his current rating. Therefore, the Board finds that a remand is required in order to determine the Veteran’s current level of impairment with regard to his service-connected residuals of prostate cancer. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for a VA examination to assess the current severity of his service-connected residuals of prostate cancer. The claims file should be reviewed by the examiner. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The examiner must also describe all symptoms, pathology, and resultant impairment associated with the Veteran’s service-connected residuals of prostate cancer, in sufficient detail to allow for application of the pertinent rating criteria. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Unger, Associate Counsel