Citation Nr: 21067487 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 06-00 426 DATE: November 4, 2021 ORDER Entitlement to service connection for erectile dysfunction (ED), to include as secondary to service-connected posttraumatic stress disorder (PTSD), residuals, status post prostatectomy due to benign prostate hypertrophy (BPH) (herein a prostate disability) and diabetes mellitus, type II (herein diabetes), is granted. Entitlement to special monthly compensation (SMC) based on loss of use of a creative organ pursuant to 38 U.S.C. § 1114(k) is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his ED was aggravated by service-connected PTSD, a prostate disability, and diabetes. 2. As the result of service-connected ED, the Veteran has suffered the loss of use of one or more creative organs. CONCLUSIONS OF LAW 1. The criteria for service connection for ED, to include as secondary to service-connected PTSD, a prostate disability, and diabetes, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for entitlement to SMC based on the loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to July 1967, to include service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge. The case is on appeal from an October 2004 rating decision. In November 2010, the Veteran testified before the undersigned Veterans Law Judge. The Board of Veterans' Appeals (Board) remanded this claim in April 2011, December 2015, August 2017, November 2019 and December 2020. 1. Service Connection ED Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The connection between the service-connected disability and the current disorder can be as a result of treatment for the service-connected disability. See Healey v. McDonough , 33 Vet. App. 312, 322 (2021) ("Secondary service connection is appropriate when a service-connected condition either causes disability or aggravates a preexisting disability...The same is true when the causal or aggravative agent is the treatment for a service-connected condition"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board notes that the Veteran has already established service connection for PTSD, a prostate disability and diabetes. Evidence during the appeal period also noted a diagnosis of ED. See, e.g., March 2012 Male Reproductive System Conditions Disability Benefits Questionnaires (DBQ). Thus, the first and second elements of secondary service connection are met. Id. The Veteran has contended, essentially, that his ED is secondary to his service-connected PTSD, prostate disability, and diabetes, to include as a result of treatment for such disabilities. See May 2021 Appellant's Post-Remand Brief ("The Veteran asserts that his ED was aggravated by his service connected PTSD, Diabetes and Benign prostatic hypertrophy....He takes medication for multiple conditions that are service connected and states that his ED could have been aggravated due to his multiple medication intake"); June 2010 Veteran Statement ("Medication for...diabetes...causes ED"); April 2010 VA Form 9 ("My [ED] is secondary to my prostate problem"). By way of background, the Veteran filed the claim on appeal in February 2004 and listed a disability of "Impotency" and noted that such began in 2003. Private medical records from Urology Associates, however, included a November 1995 notation that the Veteran "has been treated for impotence." As to the issue of whether there is a link between the Veteran's ED and his service-connected PTSD, prostate disability, and diabetes, of record are multiple VA opinions. In April 2011, the Board remanded this claim and requested an opinion as to whether the Veteran's ED was secondary to his prostatectomy. The Veteran was afforded a VA examination in March 2012 and a Male Reproductive System Conditions DBQ was completed by Dr. E.V. A diagnosis was noted of ED, with a date of diagnosis noted of November 1995. A section of the DBQ asked for the etiology of ED and stated was "[diabetes], [hypertension], hyperlipidemia, tobacco use [history], alcohol use [disorder], natural aging ([greater than 50 years old]), [cardiovascular] disease, radical[] prostatectomy." The examiner separately provided an opinion that "the Veteran's ED is less likely than not due to radical prostatectomy" and stated "consistent with age" and that "[a]fter age 55 years, the vast majority of individuals have ED due to natural age-related degeneration of the male organs. Forty percent of males have age related ED onset in their early 40's with age related progression." The examiner also noted that the Veteran's ED diagnosis in 1995 preceded his prostatectomy in 2002. The examiner also provided an opinion that "ED was not aggravated by his prostatectomy beyond the natural progression of disease." No rationale was provided in support of this opinion. In December 2015, the Board remanded this claim and requested an opinion as to whether the Veteran's ED was secondary to his diabetes. The requested opinion was provided in March 2016 by Dr. J.M. and stated that "[t]he condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition." The provided rationale stated: A review of the [V]eteran's medical records indicate that he was initially diagnosed with ED in 1995 and diagnosed with Diabetes in 2003. Based on this medical record review the [V]eteran's ED preceded the diagnosis of [diabetes] by at least 8 years. ED is a multifactorial condition and the [V]eteran has multiple risk factors including: age, tobacco abuse history, hyperlipidemia, [hypertension], [diabetes], medications. Based on a review of the [V]eteran's medical records it is less likely than not that the [V]eteran's [service-connected diabetes] caused the [V]eteran's ED. In addition, due to the multiple risk factors the [V]eteran has for the development of ED (including prostatectomy prior to or near the diagnosis of the [V]eteran's [diabetes]) it is less likely than not that the [V]eteran's [diabetes] aggravated his ED. In August 2017, the Board remanded this claim as inextricably intertwined with the claim for entitlement to service connection for a prostate disability. The remand directives also conditionally requested (if a positive direct service connection opinion for the prostate disability was provided) an opinion addressing whether the Veteran's ED was secondary to the prostate disability. In response to the remand, an opinion was provided in December 2018 from Dr. C.T. The opinion stated that the Veteran's ED "is less likely than not the result of his benign prostatic hypertrophy and resulting suprapubic prostatectomy." The accompanying rationale stated that: BPH is not a known risk factor for ED. Moreover ED preexists BPH and [diabetes] by many years. Veteran's known ED risk factors include natural age of 52 at the time of diagnosis (1995), Hypertension, Hyperlipidemia and tobacco abuse. It is not possible for this c&P Examiner to determine the precise percentage each risk factor plays in the overall condition of the [V]eteran's ED without resorting to mere speculation. After age 50 years, the vast majority of individuals have ED due to natural age-related degeneration of the male organs. Forty percent of males have age related ED onset in their early 40's with further age related progression. Extrapolating these risk factors makes ED less likely than not the result of his BPH with suprapubic prostatectomy. In November 2019, the Board remanded this claim as inextricably intertwined with the claim for entitlement to service connection for a prostate disability. The remand directives again conditionally requested (if a positive direct service connection opinion for the prostate disability was provided) an opinion addressing whether the Veteran's ED was secondary to the prostate disability. Subsequently, an opinion was provided in July 2020 from Dr. B.J. The opinion, which was followed by citation and quotation of medical literature, stated: It is noted in the treatment record that the Veteran was noted to have mild ED symptoms in 2017. Testosterone level at that time was 349.85 (175-781). At that time the Veteran was 73 years of age. Advancing age is a major cause of sexual dysfunction (see below). It is therefore my opinion that the Veteran's [ED] is Less Likely Than Not caused by, related to, or worsened beyond natural progression by his benign prostatic hypertrophy and resulting suprapubic prostatectomy or history of treatment for prostatitis. In December 2020, the Board granted service connection for a prostate disability and remanded this claim. The Board stated that "[t]he record also indicates that the Veteran takes medication to treat service-connected [PTSD] that carries various possible side effects, such as 'sexual' side effects. See, e.g., January 2014 VA Psychiatry Outpatient Note. As such, the issue of whether ED is secondary to service-connected PTSD has been reasonably raised by the record." The Board further stated that "the record indicates that [the Veteran's] ED could possibly be related to or aggravated by the treatment for his service-connected PTSD. Remand is necessary to obtain a VA opinion addressing this theory of entitlement." The Board additionally discussed the March 2016 VA secondary service connection opinion that addressed diabetes and stated that the "opinion is conclusory with respect to whether [the Veteran's] ED was aggravated by his diabetes. A conclusory opinion is inadequate...As such, remand is warranted to obtain a new VA opinion that provides a sufficiently detailed rationale with respect to whether his ED is secondary to his diabetes." The Board here notes that the cited January 2014 VA psychiatry note was from Dr. M.R. and that this note indicated that the Veteran was taking the medication Celexa (citalopram). Multiple other VA treatment records, dated from 2010 to 2014, are of record from Dr. M.R. which contained similar notations as to medication carrying possible "sexual" side effects. See, e.g., July 2010 VA Psychiatry Outpatient Note (the first note containing such information while the Veteran was noted to be taking Celexa). These notes contained this similar information in reference to drugs besides just Celexa. See August 2013 VA Psychiatry Outpatient Note (noting the Veteran on Wellbutrin (bupropion)); September 2013 VA Psychiatry Outpatient Note (noting the Veteran on Zoloft (sertraline)). In addition, a January 2015 VA psychiatry outpatient note from a different provider, Dr. D.E., noted that the Veteran was starting buspirone and also referenced possible side effects to include "sexual." A January 2021 opinion was provided by Dr. J.T. The opinion noted "pertinent medications & side effects: None related to claimed condition." The opinion further stated that ED was "not caused by service or [service-connected] conditions. Condition not caused by Diabetes mellitus, nor PTSD, no[r] a combination; such a causative nexus cannot be sustained by current peer review medical literature" and "[as] established already by [Veterans Benefits Administration], ED pre-existed to Diabetes, therefore cannot be caused by it. Condition most likely due to age." Citation and quotation to medical literature followed. An additional opinion stated that "[t]here is no objective evidence to support that condition was aggravated, in any measurable way, beyond its natural progression, by [V]eteran Diabetes, PTSD or past military history." The Board notes that this opinion did not clearly address the issue referenced by the December 2020 Board remand of whether the Veteran's ED was secondary to treatment for his service-connected PTSD. Upon review, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for ED. As outlined above, of record are various VA opinions addressing the issue of secondary service connection. In general, the Board finds probative the various opinions that indicated that the Veteran's ED was not caused by his PTSD, prostate disability or diabetes. In this regard, the March 2012 VA opinion stated that "the Veteran's ED is less likely than not due to radical prostatectomy" and noted that the Veteran's ED diagnosis in 1995 preceded his prostatectomy in 2002. Similarly, the March 2016 VA opinion stated that "[t]he condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition" and noted that the Veteran's ED diagnosis in 1995 preceded his diagnosis of diabetes in 2003. In addition, the August 2017 VA opinion stated that the Veteran's ED "is less likely than not the result of his benign prostatic hypertrophy" and noted that "BPH is not a known risk factor for ED." Further, the January 2021 VA opinion stated that ED was "not caused by...[service-connected] conditions. Condition not caused by...PTSD" and that "such a causative nexus cannot be sustained by current peer review medical literature." As to the issue of aggravation, however, the Board finds the VA opinions of record to be of limited probative value. With respect to the Veteran's prostate disability, a March 2012 VA opinion stated that "ED was not aggravated by his prostatectomy beyond the natural progression of disease," but no rationale was provided in support of this opinion. Accordingly, this opinion is afforded limited probative value. In addition, a July 2020 VA opinion stated "the Veteran's [ED] is Less Likely Than Not...worsened beyond natural progression by his benign prostatic hypertrophy and resulting suprapubic prostatectomy or history of treatment for prostatitis." The provided rationale, however, was fairly conclusory and primarily addressed causation ("[a]dvancing age is a major cause of sexual dysfunction") and not aggravation. As such, this opinion is afforded limited probative value. With respect to the Veteran's diabetes, a March 2016 VA opinion stated that "due to the multiple risk factors the [V]eteran has for the development of ED (including prostatectomy prior to or near the diagnosis of the [V]eteran's [diabetes]) it is less likely than not that the [V]eteran's [diabetes] aggravated his ED." As noted, the Board in December 2020 stated that this opinion was "conclusory" and that "[a] conclusory opinion is inadequate." As such, this opinion is afforded limited probative value. In addition, a January 2021 VA opinion stated that "[t]here is no objective evidence to support that condition was aggravated, in any measurable way, beyond its natural progression, by [V]eteran Diabetes." The Board finds that this opinion is conclusory and accordingly affords it limited probative value. With respect to the Veteran's PTSD, the January 2021 VA opinion previously quoted provided the same opinion for PTSD ("[t]here is no objective evidence to support that condition was aggravated, in any measurable way, beyond its natural progression, by [V]eteran...PTSD"). The Board again finds that this opinion is conclusory and accordingly affords it limited probative value. In review, while various VA opinions were obtained addressing the issue of secondary service connection aggravation, the Board finds all of them to be of limited probative value. Alternatively, there is at least some evidence indicating that the Veteran's ED was secondary to service-connected disabilities. In this regard, the March 2012 VA Male Reproductive System Conditions DBQ noted, in a section of the DBQ that asked for the etiology of ED, "[diabetes]" and "radical[] prostatectomy." The March 2016 VA opinion stated that "ED is a multifactorial condition and the [V]eteran has multiple risk factors including... [diabetes], medications" and also noted "the multiple risk factors the [V]eteran has for the development of ED (including prostatectomy)." Taken together, these opinions essentially indicated that ED is a multifactorial condition and that the Veteran's diabetes, prostatectomy and medications were factors. In addition, as to the medication issue, as discussed above, VA psychiatry notes dated from 2010 to 2015 from two doctors (Dr. M.R. and Dr. D.E.) referenced four medications (citalopram, bupropion, sertraline and buspirone) that the Veteran was taking as having possible "sexual" side effects. The Board notes that none of the VA opinions specifically addressed whether the Veteran's ED was secondary to treatment for his service-connected PTSD and diabetes. Overall, VA has obtained multiple opinions as to the Veteran's ED claim over an appeal period dating to 2004, which has included five Board remands. As to the issue of secondary service connection aggravation, the Board finds the opinions obtained to be of limited probative value. On the other hand, there is evidence indicating that ED is a multifactorial condition and that the Veteran's diabetes, prostatectomy and medications were factors. Upon review, the Board finds that there is at least an approximate balance of positive and negative evidence regarding whether the Veteran's ED is secondary to service-connected disabilities. In sum, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's ED was aggravated by service-connected PTSD, a prostate disability and diabetes. As such, the Board concludes that the criteria for service connection for ED have been met and, to this extent, the Veteran's claim is therefore granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. SMC SMC pursuant to 38 U.S.C. § 1114(k) is warranted, as relevant, "if the veteran, as the result of service-connected disability, has suffered the...loss of use of one or more creative organs." The United States Court of Appeals for Veterans Claims (Court) has stated that SMC benefits "are to be accorded when a veteran becomes eligible without need for a separate claim. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)." See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). 38 C.F.R. § 3.155(d)(2) states "Scope of claim. Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g.,...entitlement to [SMC] under 38 C.F.R. § 3.350." In a June 2005 notice of disagreement, the Veteran discussed ED and noted "the loss of a...creative organ." In light of the grant of entitlement to service connection for ED in this decision, the Board concludes that the criteria for entitlement to SMC based on the loss of use of a creative organ have been met and, to this extent, the Veteran's claim is therefore granted. 38 U.S.C. § 1114(k); 38 C.F.R. § 3.350(a). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.