Citation Nr: 1808581 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-04 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to herbicide exposure, and service-connected anxiety disorder and/or degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure, and service-connected anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jarrette A. Marley, Counsel INTRODUCTION The Veteran had active service in the United States Air Force from May 1966 to August 1968, including service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified in a video conference hearing before the undersigned Veterans Law Judge (VLJ). The case was previously before the Board in October 2015 and March 2017. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam and is presumed to have been exposed to herbicides. 2. The Veteran is service-connected for anxiety disorder and degenerative arthritis of the lumbar spine. 3. The most probative evidence indicates the Veteran's erectile dysfunction was not shown in service or for many years thereafter; the disability is not shown to be due to an event or incident of the Veteran's period of active service, to include exposure to herbicides during service, and his erectile dysfunction is not related to service or a service-connected disability. 4. The most probative evidence indicates the Veteran's hypertension was not shown in service or for many years thereafter; the disability is not shown to be due to an event or incident of the Veteran's period of active service, to include exposure to herbicides during service, and his hypertension is not related to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When considering whether lay evidence is competent 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. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease manifested to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent, the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Erectile Dysfunction The Veteran contends that he is entitled to service connection for erectile dysfunction secondary to his service-connected anxiety disorder and/or degenerative arthritis of the lumbar spine, or alternatively secondary to his conceded herbicide exposure in Vietnam. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Erectile dysfunction is not listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). However, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for erectile dysfunction, under any theory of entitlement. The most probative competent evidence in the record is that reflected in the May 2017 VA examination wherein it was opined that the Veteran's erectile dysfunction was less likely than not caused by or aggravated by his service-connected anxiety disorder or lumbar spine degenerative arthritis, or combination thereof. It was explained that the Veteran has benign prostatic hyperplasia (BPH) which is part of the normal aging process in males. In addition, the Veteran's total and free testosterone levels are below the average range for his age, and could contribute to his erectile dysfunction. The Veteran also has no cauda equina symptoms related to his lower back, and therefore no neurological deficits including erectile dysfunction and urinary incontinence are due to his low back disability. The examiner also opined that the anxiety disorder does not lead to organic erectile dysfunction. The Veteran was not currently on any medication for his anxiety disorder so that could not be the cause of his erectile dysfunction. Low testosterone, BPH, and obesity are more likely the cause of his erectile dysfunction. The May 2017 VA opinion was provided after a review of the Veteran's claims file, and interview and physical examination of the Veteran, and provided by a professional competent to opine as to the etiology of the Veteran's erectile dysfunction. On this basis, the Board finds that the May 2017 VA examination is the most probative evidence of record, and is against the Veteran's claim for service connection for erectile dysfunction. Notably, there is no competent medical opinion to the contrary. In addition, as was noted above, erectile dysfunction is not included as a presumptive disability under sections 3.307 and 3.309 for veterans exposed to Agent Orange, and erectile dysfunction is not entitled to presumptive service connection based on exposure to herbicides. To the extent the Veteran contends that his erectile dysfunction is due to herbicide exposure, while veterans are competent to opine as to some medical matters, the Veteran's contention is a matter beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the competent medical evidence demonstrates that the Veteran's erectile dysfunction began more than one year after his active service, and was not caused by any incident of service, to include as secondary to his service-connected anxiety disorder and/or degenerative arthritis of the lumbar spine, as well as due to herbicide exposure. The Board thus finds that the preponderance of the evidence is against his claim for service connection. In reaching the above conclusions, 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 the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Hypertension The Veteran contends that he is entitled to service connection for hypertension, claimed as secondary to herbicide exposure, or as secondary to service-connected anxiety disorder. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Ischemic heart disease is listed under 38 C.F.R. § 3.309(e) as a disability being presumptively related to herbicide exposure. 75 Fed. Reg. 53,202, 53,216 (Aug. 31, 2010). Ischemic heart disease is defined as "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" 38 C.F.R. § 3.309(e). Note 3 of § 3.309(e) specifically states that hypertension is not included within the generally accepted medical definition of ischemic heart disease. Therefore, hypertension is not entitled to presumptive service connection based on exposure to herbicides. However, when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As an initial matter, the evidence shows that the Veteran has been diagnosed with and treated for hypertension. Accordingly, the first element of service connection, a current disability, is met. Thus, the question becomes whether the Veteran's hypertension is related to service, including presumed herbicide exposure during service, or his service-connected anxiety disorder. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension, under any theory of entitlement. The most probative competent evidence in the record is that reflected in the May 2017 VA examination wherein it was opined that the Veteran's hypertension, diagnosed more than 20 years after his military service, less likely resulted from his service or herbicide exposure during service. The examiner stated that hypertension has not been linked to Agent Orange. Two previous studies have not shown a significant mortality risk due to hypertension for Vietnam veterans compared to non-Vietnam veterans. Hypertension increases with age as part of the normal aging process. In addition, the Veteran has a strong family history of hypertension. Therefore, based on the current available medical literature, the Veteran's hypertension is less likely due to his service or herbicide exposure. The May 2017 VA examination also opined that the Veteran's hypertension was less likely than not caused by or aggravated by his service-connected anxiety disorder. Anxiety disorder may cause a transient elevation of blood pressure readings in response to a panic attack or an anxiety episode, but it is not the cause of essential hypertension. Essential or primary hypertension is the most common cause of hypertension in the adult population, and is often associated with genetic make-up such as family history and progression of age which contributes to hardening of the arteries leading to hypertension. Primary hypertension is less likely aggravated beyond the natural progression of the disease by anxiety. The May 2017 VA opinion was provided after a review of the Veteran's claims file, and interview and physical examination of the Veteran, and provided by a professional competent to opine as to the etiology of the Veteran's hypertension. On this basis, the Board finds that the May 2017 VA examination is the most probative evidence of record, and is against the Veteran's claim for service connection for hypertension. Notably, there is no competent medical opinion to the contrary. In addition, as was noted above, hypertension is not included as a presumptive disability under sections 3.307 and 3.309 for veterans exposed to Agent Orange, and hypertension is not entitled to presumptive service connection based on exposure to herbicides. To the extent the Veteran contends that his hypertension is due to herbicide exposure, while veterans are competent to opine as to some medical matters, the Veteran's contention is a matter beyond lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of the competent medical evidence demonstrates that the Veteran's hypertension began more than one year after his active service, and was not caused by any incident of service, to include as secondary to his service-connected anxiety disorder, as well as due to herbicide exposure. The Board thus finds that the preponderance of the evidence is against his claim for service connection. In reaching the above conclusions, 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 the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for erectile dysfunction is denied. Service connection for hypertension is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs