Citation Nr: 20021043 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 15-12 359 DATE: March 24, 2020 ORDER The claim for service connection for erectile dysfunction, to include as secondary to PTSD, is denied. The claim for service connection for a left knee disability is denied. The claim for service connection for a right knee disability, to include as secondary to a left knee disability, is denied. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that erectile dysfunction was incurred in service or is proximately due to or a result of PTSD, to include with consideration of aggravation. 2. A left knee disorder clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. 3. The most probative evidence of record weighs against a conclusion that a right knee disability was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, to include as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). 2. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 101, 1110, 1153, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). 3. The criteria for service connection for a right knee disability, to include as secondary to a left knee disability, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to March 1969. Following development with respect to these claims requested in a March 2019 Board of Veterans’ Appeals (Board) remand—and pursuant to testimony presented to the undersigned at a May 2018 hearing—service connection for peripheral neuropathy of the left and right lower extremities was granted by a November 2019 rating decision. As such, the matter of service connection for these disabilities are no longer in appellate status. The March 2019 remand also directed that a Statement of the Case (SOC) be completed with respect to the matter of service connection for a bilateral foot disability pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) given argument submitted in October 2018 that represented a timely notice of disagreement with respect to an October 2018 rating decision that denied service connection for a bilateral foot disability. An SOC issued in November 2019, in part, denied service connection for a bilateral foot disability. Thereafter, the Veteran submitted a VA Form 10182 in December 2019 requesting Direct Review of the October 2018 rating decision that denied service connection for a bilateral foot disability, as well as earlier effective dates for the grants of service connection for peripheral neuropathy of the bilateral lower extremities under the under the Appeals Modernization Act (AMA). These issues will be addressed in a separate Board decision.   I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). A Veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected” (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). II. Analysis 1. Erectile Dysfunction The Service Treatment Reports (STRs), to include the reports from the January 1969 separation examination and medical history collected at that time, are silent for erectile dysfunction, and there is not otherwise any clinical evidence of record indicating that the Veteran has erectile dysfunction that is etiologically related to in-service symptomatology or pathology. Notwithstanding the above, the Veteran has asserted, to include in sworn testimony to the undersigned, that service connection for erectile dysfunction is warranted as secondary to PTSD because the medication he takes for this condition has caused erectile dysfunction. This contention is not supported by any evidence of record, and a VA medical opinion completed in May 2019 pursuant to instructions in the March 2019 remand found that it was less likely than not that the Veteran’s erectile dysfunction was proximately due to or aggravated by the medication he takes for PTSD. This opinion was based on a review of the claims file and supported by an adequate rationale; namely, that the medical literature indicated that erectile dysfunction was not a known side effect of the drugs (Risperidone, Trazodone, and Fluoxetine) that the Veteran takes for PTSD. As such, the undersigned finds this opinion to be definitive as to the matter for consideration. To the extent the assertions of the Veteran and his representative are advanced in an attempt to establish that he has erectile dysfunction that is proximately due to or a result of the medication he takes for PTSD, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative have been shown to have had the appropriate training and expertise, neither are competent to render a persuasive opinion as to such matters. In sum, the Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for erectile dysfunction, to include as secondary to PTSD. As such, this claim must be denied. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Left and Right Knee Disabilities The examination conducted upon entrance to service was silent for a disability in the left knee. As such, there is a presumption that the left knee was sound upon entrance to service. 38 U.S.C. § 1111. Several STRs reflected treatment of the left knee, to include in December 1966, at which time the Veteran complained about left knee pain of one day’s duration and on and off pain for the prior year and a half (which places its onset prior to service) due to a cut. The examination at that time showed the left knee to be stable. The Veteran also described a one-year history of knee pain, more so in the prior month, later in December 1966. A pre-service history of an injury to the left leg in 1963 involving a deep laceration at the peroneal muscle group was reported, and the Veteran indicated that his knee had not been the same since. The examination at that time demonstrated a 3-inch longitudinal scar with some peroneal muscle herniations noted as being noncontributory to the knee complaints. X-rays of the left knee were negative, and the diagnostic impression was “no disease.” A January 1968 STR reflects the Veteran reporting an old injury to the left knee that had been giving him trouble the prior few days. A long history of left knee pain was noted. The diagnosis was “no evidence of intrinsic damage at this time.” An x-ray showed a small cortical defect involving the lateral condyle of the left femur. Additional X-rays conducted in February 1968, at which time it was reported that the Veteran still had pain that did not respond to medication, showed an area of osteochondritis dissecans involving the lateral femoral condyle of the left femur. The Veteran was seen again later in February 1968 for left knee pain, with no significant clinical findings demonstrated at that time. He was placed on a limited duty profile due to left knee pain in February 1968. Thereafter, the Veteran was seen for treatment for left knee pain on several occasions, but he did not report having a left knee disability at separation from service, and the January 1969 separation examination did not reveal a left or right knee disability. After service, the Veteran’s initial claim for service connection for left and right knee disabilities was filed in May 1975. X-rays conducted of both knees at a VA medical facility in September 1975 were negative. VA outpatient treatment reports dated in September and October 1976 reflect the Veteran reporting on and off pain in both knees since 1966. A February 1977 VA outpatient treatment report noted complaints of pain in the left knee and a report by the Veteran of an injury to this knee in 1966. At a VA examination in March 1977, the Veteran reported a history of bilateral knee pain since serving in Vietnam in 1968. The physical examination at that time was within normal limits and the diagnostic impression was “normal knee examination.” Additional examinations in 1977 reflected knee complaints, and the diagnoses included chondromalacia and degenerative joint disease of the right knee. A May 2018 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) included the conclusion that it was “more likely than not[] [that] there exists a nexus between the Veteran’s military service and his right knee pain, secondary to his left knee condition, due to the well accepted principle of unequal loading of lower extremities and decrease in functional capacity relate to contralateral knee pathology.” Given the evidence set forth above and the standard of review applicable to claims based on aggravation of disabilities not shown upon service entrance, the March 2019 remand directed that the Veteran be afforded a VA examination that included opinions as to whether it was clear and unmistakable that a left knee disability existed prior to service and was not aggravated thereby. If the results of such opinions were favorable to the Veteran, the examiner was to also express an opinion as to whether it was at least as likely as not that the Veteran had a right knee disability that was caused by any portion of a left knee disability found to have been aggravated by service, to include by way of aggravation of such left knee disability. The requested opinion with respect to the left knee was completed in May 2019, with the examiner concluding that a left knee clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury or illness. The rationale for the opinion, in pertinent part, was as follows: The Veteran had a pre-existing left knee disability supported by his own comments of injury prior to service and service records reporting complaints of knee pain prior to service. There is no objective evidence of aggravation. The majority of knee exams during active duty report full range of motion. The complaints of chronic knee pain during active duty is a subjective finding without support of functional impairment . . . The record contains no evidence of a medical opinion contradicting the May 2019 opinion with respect to aggravation of a left knee disability, and the undersigned finds the opinion to be definitive at to this matter as it was based on a physical examination of the Veteran and review of the claims file and was supported by adequate rationale. In making this determination, the undersigned has considered the contention by the Veteran that the underlying pathology of his left knee disability was aggravated by service, but as he is not competent to render such an opinion, the undersigned finds the probative value of his statements to be outweighed by the negative May 2019 opinion. As such, service connection for a left knee disability cannot be granted. 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Given the determination above that service connection for a left knee disability is not warranted, the claim for service connection for a right knee disability as secondary to a left knee disability lacks legal merit. As for direct service connection, while the Veteran in testimony before the undersigned asserted that he sustained damage to his right knee due to the wear and tear of military activities, the probative weight of these assertions is outweighed by the silent STRs for a right knee disorder, to include the reports from the separation examination, and the Veteran’s specific denial of a right knee disability in the medical history collected at separation. As such, Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a right knee disability, to include as secondary to a left knee disability. Therefore, this claim must be denied. Id. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Andrew Ahlberg, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.