Citation Nr: 21075191 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-23 884 DATE: December 17, 2021 ORDER Service connection for sexual problems, to include erectile dysfunction and infertility, due to in-service exposure to herbicide agents, is denied. FINDING OF FACT The Veteran does not have a current sexual disability etiologically related to his active service. CONCLUSION OF LAW The criteria for service connection for sexual problems, to include erectile dysfunction and infertility, due to in-service exposure to herbicide agents, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1968 to December 1970, to include service in the Republic of Vietnam during the Vietnam Era. In April 2021, the Board of Veterans' Appeals (Board) remanded this appeal for further development. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Furthermore, a layperson is competent to report on the onset and continuity of his or her current symptomatology. 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). In addition, a veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Certain enumerated chronic diseases associated with exposure to herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to herbicides. 38 C.F.R. § 3.309(e). Of note, VA regulations do not include sexual problems, including erectile dysfunction or infertility, on the presumptive list. As such, although the Veteran's exposure to Agent Orange has been conceded in this case due his previously mentioned service in the Republic of Vietnam during the Vietnam Era, a presumptive service connection is not allowed for his sexual problems. However, service connection may still be awarded on a direct basis if a current condition can be medically linked to his active duty. The Veteran was afforded multiple VA male reproductive organ examinations throughout the appeal period (in July 2019, October 2020, and May 2021) which confirm that he has a current diagnosis of erectile dysfunction. As to his alleged infertility, pursuant to the most recent Board Remand, the May 2021 VA examiner was directed to determine through appropriate testing whether the Veteran is, in fact, infertile. A semen analysis was conducted on August 27, 2021. The examiner discussed the results and concluded that there was no evidence of infertility, and a diagnosis of such was not warranted. The Veteran has not submitted any other evidence showing that he has been medically diagnosed with infertility during the period on appeal. To warrant service connection, the threshold requirement is competent evidence of the existence of the claimed disability at some point during a veteran's appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Board recognizes the Veteran's sincere belief in the infertility aspect of this claim, the most competent evidence of record does not show that he has a medical diagnosis of infertility at any time during this appeal. Lacking a current diagnosis of infertility, service connection cannot be allowed for infertility. Regardless, because the Veteran does have a current diagnosis of erectile dysfunction, the current disability prong of his claim has been met in that respect, and the remaining issue is whether the condition can be medically linked to any aspect of service or whether it onset therein. Turning to the issue of a medical nexus, etiological opinions were obtained for the Veteran's erectile dysfunction at the July 2019, November 2020, and May 2021 VA examinations and in a February 2021 addendum opinion. The Board has previously determined, in an October 2019 remand in this matter, that the July 2019 VA examiner's negative etiological opinion was inadequate. As such, it cannot be considered probative evidence on the issue and will not be discussed herein. All other VA examiners have opined against service connection for the Veteran's erectile dysfunction. Specifically, the November 2020 VA examiner who also rendered the February 2021 VA addendum opinion concluded that the Veteran's erectile dysfunction was less likely than not related to his service because it developed after service and because erectile dysfunction has not been recognized by VA as a condition presumptively linked to herbicide agent exposure. Because the examiner did not address whether the Veteran's erectile dysfunction could be directly linked to his presumed in-service herbicide exposure, she provided an addendum opinion in February 2021. Therein, she further elaborated that the Veteran's erectile dysfunction was not diagnosed until 2016, more than 40 years after his separation from active duty. For that reason, she again concluded that the disability was less likely than not due to his service in Vietnam. The Board notes that this opinion still, however, did not sufficiently address whether the Veteran's erectile dysfunction could be directly related to his exposure to Agent Orange in service. Following the Board's April 2021 remand, the May 2021 VA examination was obtained to address the insufficiencies with the November 2020 and February 2021 VA examiner's opinions. The May 2021 VA examiner also found that the Veteran's erectile dysfunction was less likely than not related to his in-service exposure to herbicide agents. The examiner explained that there simply is no medical literature which supports such a relationshipand that Veteran's erectile dysfunction was due his enlarged prostate. As to the Veteran's prostate issues, the Board notes that the November 2020 VA examiner also rendered a negative etiological opinion for his prostatitis. The Board notes that service connection for prostate problems was denied in a December 2010 rating decision. In a January 2019 rating decision, the Regional Office denied the Veteran's request to reopen the previously denied claim for prostate problems. The Veteran did not perfect an appeal of those decisions. Thus, the issue of service connection for prostate problems is not currently before the Board. Further, having been denied service connection for prostate problems, the Veteran is not currently service-connected for any prostate issues. Thus, the May 2021 VA examiner's determination that the Veteran's erectile dysfunction is due to his enlarged prostate does not raise the theory of secondary service connection as service connection is not in effect for the underlying disability of enlarged prostate. 38 C.F.R. § 3.310. The Veteran has not identified or provided any medical opinions or literature which contradicts the VA examiners' nexus opinions in this matter. His medical records have also been reviewed, but they do not contain evidence of a medical nexus linking his erectile dysfunction to his herbicide agent exposure in service. As such, a medical nexus has not been established linking the Veteran's erectile dysfunction to any incident of his service, to include his presumed exposure to herbicide agents therein. Lacking a medical nexus to support this service connection claim, a direct service connection is not warranted for this condition. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of erectile dysfunction. Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion and lay statements linking his erectile dysfunction to his Agent Orange exposure are insufficient to provide the requisite nexus. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for sexual problems (to include erectile dysfunction and infertility) is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.