Citation Nr: 21002309 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-00 301 DATE: January 13, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED), to include as due to exposure to herbicides, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, is denied. Entitlement to service connection for left upper extremity peripheral neuropathy (PN), to include as due to exposure to herbicides, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, is denied. Entitlement to service connection for right upper extremity PN, to include as due to herbicides, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, is denied. Entitlement to service connection for left lower extremity PN, to include as due to exposure to herbicides, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, is denied. Entitlement to service connection for right lower extremity PN, to include as due to exposure to herbicides, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that the Veteran had ED related to service, including exposure to herbicides, diesel fumes or other toxins, or was proximately related to or the result of a service-connected disability. 2. The weight of evidence is against a finding that the Veteran had PN of the left upper extremity related to service, including exposure to herbicides, diesel fumes or other toxins, or was proximately related to or the result of a service-connected disability. 3. The weight of evidence is against a finding that the Veteran had PN of the right upper extremity related to service, including exposure to herbicides, diesel fumes or other toxins, or was proximately related to or the result of a service-connected disability. 4. The weight of evidence is against a finding that Veteran had PN of the left lower extremity related to service, including exposure to herbicides, diesel fumes or other toxins, or was proximately related to or the result of a service-connected disability. 5. The weight of evidence is against a finding that that Veteran had PN of the right lower extremity related to service, including exposure to herbicides, diesel fumes or other toxins, or was proximately related to or the result of a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for ED, to include as due to exposure to herbicide agents, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107, 5121; 38 C.F.R. §§ 3.102, 3.303, 3307, 3.309, 3.310. 2. The criteria for service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicide agents, or secondary to service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3307, 3.309, 3.310. 3. The criteria for service connection for peripheral neuropathy of the right upper extremity, to include as due to exposure to herbicide agents, diesel fumes, or other toxins, or secondary to service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3307, 3.309, 3.310. 4. The criteria for service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicide agents, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3307, 3.309, 3.310. 5. The criteria for service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicide agents, diesel fumes or other toxins, or secondary to service-connected disability, for substitution purposes, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from February 1960 to August 1972. He died in July 2016. The appellant is his surviving spouse. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the appellant requested to be substituted as the claimant in the Veteran’s claims pending at the time of his death. This request for substitution was granted in May 2017 correspondence. The appellant testified at a Board video conference hearing in August 2017. A transcript of the hearing is of record. This matter was previously before the Board in January 2018 and April 2019 at which times the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development; namely, to obtain additional medical opinions. There has been substantial compliance with the Board’s January 2018 and April 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection One basis for the claims for service connection for ED and for PN of the upper and lower extremities is that these disabilities were due to the Veteran’s exposure to herbicides while serving in the Republic of Vietnam. See 38 U.S.C. § 1116 (f) (2012); 38 C.F.R. § 3.307 (a)(6)(iii). His exposure to herbicides in service has been conceded. See April 2019 Board decision. It has also been asserted that these disabilities were due to the Veteran’s exposure to diesel fuel and other toxins in service, or were secondary to his service-connected diabetes mellitus (DM) or hypertensive cardiovascular disease. See 38 C.F.R. §§ 3.303, 3.310. ED Service treatment records do not show any complaints, treatment or findings of ED. Moreover, VA treatment records from 2011 to 2016 do not reflect complaints or a diagnosis of ED. A VA examiner in April 2018 reported, after reviewing the Veteran’s claims file, that the evidence does not indicate that the Veteran developed symptoms of ED during service. She further reported that the medical records were negative for any evidence that ED developed within 5 years of the Veteran’s discharge from service. This examiner went on to report that it is common medical knowledge that male sexual arousal is a complex process that involves the brain, hormones, emotions, nerves, muscles and blood vessels. She explained that ED can result from a problem with any of these. She added that stress and mental health concerns can cause or worsen ED and that sometimes a combination of physical and psychological issues causes ED. She went on to state that review of current medical literature does not indicate that ED may result merely from the exposure to diesel fumes or other toxins as identified in the claims file. She concluded by opining that it is less likely than not that Veteran’s ED originated during active service or is otherwise etiologically related to active service, to include exposure to diesel fumes or other toxins identified in the claims file. The Veteran’s claims file was subsequently reviewed by a VA examiner in September 2020 who opined that the claimed condition of ED was less likely than not (less than 50 percent probability) proximately due to or the result of service-connected condition. He said that data shows no conclusive ED. He went on to state that nonservice connected factors were more important causal agents for ED to include the Veteran’s age, a body mass index of 36, atrial fibrillation, Alzheimer’s, obstructive sleep apnea and a 25-year history of smoking. With respect to the Veteran’s DM, he stated that this disability, rated 10 percent disabling, was “of no significance for any lack of control of such or longevity for a nexus.” He added that there is no hypertension causality or its prescription in the claims file that shows a causality. In regard to the belief by the Veteran and the appellant that the Veteran’s ED was related to service or to his service-connected DM or hypertensive cardiovascular disease, the Board observes that the Veteran and the appellant are competent to report lay observable symptoms, such as symptoms of ED. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). However, they are not shown to have the competence to provide a diagnosis or nexus opinion regarding this issue. Id. This is so since the issue is medically complex, as it requires knowledge of organ systems in the body, the relationship between mental and physical disabilities and interpretation of medical records and literature, and because the record does not show that the Veteran had the skills or medical training or that the appellant has such skills to make such a determination. Consequently, even by assuming that the Veteran had a valid diagnosis of ED, in terms of nexus evidence, the Board gives more probative weight to the opinions of VA examiners in April 2018 and September 2010 who negated a nexus between the claimed condition and service, as well as negated a nexus between the claimed condition and the Veteran’s service-connected DM, II and hypertensive cardiovascular disease. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and there is sound reasoning for the conclusion reached). As the preponderance of the evidence is against the claim for service connection for ED, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Accordingly, the appellant’s claim for service connection for ED for substitution benefit purposes is denied. PN of the Upper and Lower Extremities The Veteran’s service treatment records show that he reported a history of leg cramps on a Report of Medical History in October 1962. These records do not show complaints, treatment or a diagnosis related to PN. Postservice medical evidence consists of VA outpatient treatment records from 2011 to 2016. These records first show a diagnosis of sensory PN in February 2016. Since the Veteran’s sensory PN was not diagnosed until many years after service, further consideration of service connection under the presumptive regulations for exposure to herbicides of 38 C.F.R. §§ 3.307(a)(6), 3.309(e) is not warranted. The above notwithstanding, where the evidence does not warrant presumptive service connection, the United States Court of Appeals for the Federal Circuit has held that an appellant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Turning to direct causation, as noted, the Veteran was not found to have PN, sensory, until many years after service and thus service connection under 38 C.F.R. § 3.303(a) or (b) is not warranted. Regarding service connection under 38 C.F.R. §§ 3.303(d) based on nexus evidence, the evidence militates against this claim. The Board notes that at the outset that VA obtained a medical nexus opinion in April 2018; however, this opinion pertains to radiculopathy of the upper and lower extremities, not peripheral neuropathy of the upper and lower extremities. Consequently, this opinion is not pertinent to the issue at hand. Another VA opinion was obtained in September 2020. The examiner opined, after reviewing the Veteran’s claims file, that the claimed condition of PN was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. He noted that there were no inservice symptoms or diagnoses of PN in service and there were no neuropathy diagnoses other than “sensory” on a February 2016 discharge note. The examiner further noted that neurology and podiatry did not label that as a diagnosis either, and he pointed out that neurology and podiatry visits in 2015 were negative for any neuropathy. He stated that data showed no conclusive neuropathy. Nonetheless, he went on to report that (the Veteran’s) nonservice-connected diagnoses were important causal agents for neuropathy to include a body mass index of 36, atrial fibrillation, Alzheimer’s, obstructive sleep apnea and a 25-year history of smoking. He added that the Veteran’s service-connected DM rated at 10 percent was “of no significance for any lack of control or such or longevity for a nexus.” He also added that hypertension does not have an association with neuropathy. As far as the belief by the Veteran and the appellant that the Veteran had PN of the upper and lower extremities that was related to service or to his service-connected DM or hypertensive cardiovascular disease, the Board observes that the Veteran and the appellant are competent to report lay observable symptoms, such as symptoms of PN. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). However, they are not shown to have the competence to provide a diagnosis or nexus opinion regarding this issue. Id. This is so since the issue is medically complex, as it requires knowledge of organ systems in the body, the relationship between mental and physical disabilities and interpretation of medical records and literature, and because the record does not show that the Veteran had the skills or medical training or that the appellant has such skills to make such a determination. Consequently, even by assuming that the Veteran had a valid diagnosis of PN of the upper and lower extremities, in terms of nexus evidence, the Board gives more probative weight to the opinion of the VA examiner in September 2020 who negated a nexus between the condition and service, as well as negated a nexus between the condition and the Veteran’s service-connected DM, II and hypertensive cardiovascular disease. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim for service connection for PN of the upper and lower extremities, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b). Accordingly, the appellant’s claim for service connection for PN of the upper left and right extremities and the lower left and right extremities, for substitution benefit purposes, is denied. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.