Citation Nr: 1815178 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-21 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for benign prostatic hypertrophy (BPH), to include as due to herbicide exposure. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected ischemic heart disease (IHD). REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served in the U.S. Army from November 1965 to November 1968, including in the Republic of Vietnam from September 1966 to September 1967. These claims come before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. When the case was previously before the Board in December 2016 it was remanded for additional development. There has been substantial compliance with the remand's directives and the Board will proceed with the appeal. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. The Veteran served in the Republic of the Vietnam during the Vietnam era, and is presumed to have been exposed to herbicides. 2. BPH was not shown in service; the currently-diagnosed BPH is not causally or etiologically related to service. 3. ED was not shown in service; the currently-diagnosed ED is not causally or etiologically related to service. ED was not caused by or permanently worsened in severity by service-connected IHD. CONCLUSIONS OF LAW 1. BPH was not incurred in service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. ED was not incurred in service nor is it proximately due to, aggravated by, or the result of service-connected IHD. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis: (i) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury is shown at a later date unless clearly attributable to an intercurrent cause under 38 C.F.R. § 3.309(a); or (ii) where a condition is noted in service but is not chronic or where chronicity may be legitimately questioned and there is continuity of symptomatology but only for specific chronic diseases listed in 38 C.F.R. § 3.309(a); or (iii) with certain chronic diseases listed in 38 C.F.R. §§ 3.307, 3.309(a) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. Service connection may also be warranted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition to the above, a veteran who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. A list of diseases that are presumed to be related to herbicide exposure includes IHD and prostate cancer but does not include BPH or ED. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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. § 5107(b); 38 C.F.R. § 3.102. Benign Prostatic Hypertrophy With regard to direct service connection, the Veteran has been diagnosed with BPH. Specifically, private treatment records reflect that he was first seen with an elevated PSA (Prostate-Specific Antigen) in August 2010. After a biopsy in March 2011, he was diagnosed with BPH. Therefore, a current disorder has been shown. However, the evidence does not show an in-service incurrence of the BPH. To that end, the service treatment records are completely silence for any complaints of, treatment for, or a diagnosis related to BPH or any symptoms reasonably attributable to BPH. As the second element (in-service incurrence) is not demonstrated with respect to BPH or a prostate disorder, the claim for service connection on a direct basis is denied. Moreover, the evidence does not show a medical nexus between BPH and service. With regard to the claim that BPH is directly related to herbicide exposure during service, BPH is not a disease for which presumptive service connection on an herbicide-exposure basis can be granted. Moreover, the Veteran has submitted no evidence and the record does not otherwise contain any evidence directly linking BPH to herbicide exposure during service. Combee v. Brown, 34 F. 3d 1039 (Fed. Cir. 1994). While prostate cancer is presumed related to herbicide exposure, the Veteran has not been diagnosed with prostate cancer. Specifically, review of the private treatment records show that he is not diagnosed with prostate cancer. A March 2017 VA medical opinion affirmatively reflects that he has not been diagnosed with prostate cancer. As such, service connection based on presumptive and direct herbicide exposure is not warranted. Next, chronic BPH was not shown in service. Specifically, the October 1968 separation examination reflects a normal clinical evaluation of the prostate. As such, entitlement based on an in-service chronic disease or injury is not warranted. Moreover, BPH is not listed as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a); therefore, analysis under continuity of symptomatology is not for application. Further, BPH is not one of the enumerated disorders listed as entitled to the one-year presumption, so no further discuss of that theory of entitlement is warranted. The Board has considered the Veteran's statements that BPH is etiologically related to service or that exposure to herbicides in service caused his BPH. Lay assertions may serve to support a claim of service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. However, the etiology of BPH is a complex medical matter beyond the expertise of a layperson. There is no indication that an individual with appropriate expertise has diagnosed the Veteran with BPH. The evidence reflects that the Veteran was not diagnosed with BHP until approximately 2010. Additionally, the medical effects of exposure to herbicides is a complex scientific matter beyond the expertise of a layperson. Moreover, there is no indication that an individual with appropriate expertise has rendered an opinion that the Veteran's BPH was caused by exposure to herbicides. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Erectile Dysfunction The Board notes that the Veteran has been diagnosed with ED. Specifically, private treatment records and the September 2013 and March 2017 VA examination and opinion reports reflect that he is diagnosed with ED. Therefore, a current disability has been shown. However, chronic ED was not shown in service. Specifically, the separation examination shows that his genitourinary system was clinically normal. As such, entitlement based on an in-service chronic disease or injury is not warranted. Moreover, ED is not listed as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a); therefore, analysis under continuity of symptomatology is not for application. Further, ED is not one of the enumerated disorders listed as entitled to the one-year presumption, so no further discuss of that theory of entitlement is warranted. The Veteran's primary contention is that ED is due to service-connected IHD. As noted above, in order to prevail on secondary service connection, there must be (1) evidence of a current disability (ED has been confirmed); (2) evidence of a service-connected disability (IHD is service-connected); and, critically (3) a nexus between the service-connected disability and the current disability. The claim fails as to the third element. In this regard, in a September 2013 VA examinations, the Veteran complained of gradual loss of penile turgor and was diagnosed with ED. The examiner opined that ED is less likely than not proximately due to or the result of service-connected IHD. In a subsequent March 2017 opinion, the examiner similarly found that ED was not at least as likely as not proximately due to or the result of IHD. The examiner reasoned that ED is often caused by the same underlying mechanisms that cause IHD, such as atherosclerosis but stressed that ED is not known to be caused by or aggravated by IHD. This evidence weighs heaving against the claim. The Board places significant probative value on the VA examinations undertaken specifically to address the issue on appeal. The examinations were adequate for evaluation purposes. Specifically, the Veteran reported his symptoms and the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Moreover, the examiners have the requisite medical expertise to render a medical opinion regarding the etiology of the disorder and had sufficient facts and data on which to base the conclusion. Further, there is no contradicting medical evidence of record. Therefore, the VA examiners' opinions are of great probative value. The Board has considered the Veteran's lay statements that ED is related to his service-connected IHP. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of his current ED due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the examination reports and clinical findings than to his statements. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, with respect to both claims, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for BPH is denied. Service connection for ED is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs