Citation Nr: 21014195 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-16 547 DATE: March 11, 2021 ORDER Service connection for erectile dysfunction as secondary to service-connected chronic adjustment disorder with anxiety and depression is granted. FINDING OF FACT The evidence of record is evenly balanced (50/50) as to whether the Veteran’s erectile dysfunction is proximately due to or the result of his service-connected chronic adjustment disorder with anxiety and depression. CONCLUSION OF LAW The criteria have been met for service connection for erectile dysfunction as secondary to service-connected chronic adjustment disorder with anxiety and depression. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for 20 years from September 1978 to September 1998 in the U.S. Army. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In July 2020, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that while in remand status, in a September 2020 rating decision, the RO granted service connection for chronic adjustment disorder with mixed anxious and depressed mood. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for an acquired psychiatric disability. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial rating or effective date assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Thus, this issue is not in appellate status at this juncture. I. VA’s Duty to Notify and Assist VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by an attachment provided to the Veteran included with his June 2018 Application for Compensation (VA Form 21-526EZ). See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020). This attachment advised the Veteran of the information and evidence necessary to substantiate his secondary service connection claim on appeal. In any event, in the decision below, the Board has granted the secondary service connection claim on appeal. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Secondary Service Connection (SSC) for Erectile Dysfunction The Veteran contends that he has erectile dysfunction that has developed secondary to psychiatric medication he takes for his service-connected chronic adjustment disorder with anxiety and depression. See October 2020 Veteran statement. When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). In this respect, a disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(a). To be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. Frost v. Shulkin, 29 Vet. App. 131, 138 (2017) (holding that there was not a temporal requirement inherent in 38 C.F.R. § 3.310(a) for claims for service connection on a secondary basis). Moreover, secondary service connection may also be established, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310(b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. A medical opinion addressing both the causation and aggravation facets of a secondary service connection claim is necessary in a secondary service connection claim. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). Moreover, when addressing secondary service connection, a VA medical opinion should not combine the concepts of causation and aggravation. Rather, separate and independent findings and rationale should be provided for each theory. Atencio v. O’Rourke, 30 Vet. App. 74, 90-91 (2018). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether secondary service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). At the outset, the Board is cognizant that direct service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. However, with regard to direct service connection, during the course of the appeal the Veteran has not asserted that his erectile dysfunction began during service in the Army from 1978 to 1998 or is otherwise related to an in-service event, injury, or disease during same. Instead, at a December 2020 VA male reproductive organ telehealth examination, the Veteran reported the onset of his erectile dysfunction in the year 2000, when he began to take psychiatric medication for anxiety. This was approximately two years after separation from active duty. Furthermore, the Veteran’s service treatment records (STRs) and post-service clinical records do not lend any support to service connection on a direct basis for erectile dysfunction. Claims which have no support in the record need not be considered by the Board, as the Board is not obligated to consider “all possible” substantive theories of recovery. That is, where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider this theory. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). As such, the Board will only address service connection on a secondary basis in the present appeal for his erectile dysfunction. Upon review of the evidence of record, the Board grants the appeal for service connection for erectile dysfunction as secondary to the Veteran’s service-connected chronic adjustment disorder with anxiety and depression. The first and perhaps most fundamental requirement for either a direct or secondary service connection claim is proof the Veteran has a current disability. See 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(a), 3.310; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the present case, there is probative evidence that the Veteran meets this threshold criterion of a current disability. Specifically, from 2008 to 2020, Martin Army Community Hospital / TRICARE treatment notes revealed a diagnosis of erectile dysfunction. As did October 2020 and December 2020 VA telehealth examiners (both VA physicians). The Veteran’s erectile dysfunction was treated through medications such as Cialis, Viagra, and Levitra, as well as a testosterone skin gel (Fortesta), a testosterone skin patch (Androderm), and testosterone injections. These treatments (in particular his recent daily use of Cialis) have improved his libido and ability to maintain an erection according to Martin Army Community Hospital / TRICARE treatment notes dated in January 2019 and March 2020. At present, the Veteran is service connected by VA for the underlying chronic adjustment disorder with anxiety and depression. This disability has been assigned a 70 percent rating under Diagnostic Code 9440 (chronic adjustment disorder). See 38 C.F.R. § 4.71a. Martin Army Community Hospital / TRICARE treatment notes dated from 2005 to 2020 confirm that the Veteran takes Wellbutrin to control the symptoms of his service-connected psychiatric disability. The claims file contains a mix of favorable and unfavorable medical opinions and clinical evidence on whether the Veteran has erectile dysfunction proximately due to or the result of his service-connected chronic adjustment disorder with anxiety and depression. See 38 C.F.R. § 3.310(a); Atencio, 30 Vet. App. at 90-91. With regard to the favorable evidence, Martin Army Community Hospital / TRICARE treatment notes dated in November 2017, January 2018, and March 2020 revealed a “differential diagnosis” for his erectile dysfunction that included vasculogenic, neurogenic, psychogenic, endocrinologic, or medication induced causes. It was noted that psychotherapy is indicated for the psychogenic components of erectile dysfunction. It was further noted that if the Veteran was taking a medication that “may contribute” to erectile dysfunction, the Veteran should discuss an alternative with a prescribing physician. Wellbutrin was listed as a psychiatric medication prescribed for the Veteran in these TRICARE records. In addition, an August 2020 VA psychological examiner assessed that medical diagnoses “relevant” to the understanding or management of the Veteran’s psychiatric problems include erectile dysfunction. Furthermore, a December 2020 VA male reproductive organ telehealth examination by a VA family practice physician documented that the Veteran’s erectile dysfunction was “caused” by anxiety medication he takes, based on the Veteran’s reported history. Moreover, at an October 2020 VA telehealth examination, a VA internal medicine physician acknowledged that in light of other clinical evidence in the record, there “may be” psychogenic components causing the veteran’s erectile dysfunction. Finally, in an October 2020 Veteran statement, the Veteran asserted that from 2001 to 2011 various doctors told him that because of medications he is taking for his service-connected anxiety, the “side effect’ is erectile dysfunction. In this regard, lay testimony regarding what a medical professional tells a lay person is specifically listed as one of the examples given as competent lay testimony. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, with regard to the unfavorable, negative evidence of record, there is some probative medical evidence that is against secondary service connection for erectile dysfunction. 38 C.F.R. § 3.310(a). For example, Martin Army Community Hospital / TRICARE problem lists dated from 2008 to 2020 often listed “male erectile disorder due to physical condition.” Martin Army Community Hospital / TRICARE clinicians in 2016, 2017, 2018, 2019, and 2020 remarked that erectile dysfunction could be due to “diseases classified elsewhere.” That is, the TRICARE clinicians surmised “possible etiologies” of his erectile dysfunction were his low testosterone levels and / or natural decline associated with aging (the Veteran is 61 years old). In fact, Martin Army Community Hospital / TRICARE treatment records beginning in 2012 also diagnosed the Veteran with hypogonadism (testicular hypofunction). This was described in the record as when the sex glands produce little or no hormones leading to low testosterone. This was assessed as the cause of the Veteran’s erectile dysfunction. In this context, a July 2016 Martin Army Community Hospital / TRICARE treatment record added that the Veteran had a history of anabolic steroid use in the 1970s. With regard to the unfavorable, negative evidence of record, the Board has reviewed the October 2020 VA telehealth examination and opinion by a VA internal medicine physician. Although acknowledging there may be psychogenic components causing the veteran’s erectile dysfunction, he opined that the presence of a history of hypogonadism for the Veteran makes it difficult to ascertain with 50 percent or greater probability that his erectile dysfunction was “solely due to or isolated to” his service-connected psychiatric disorder. However, the Board sees that the rationale of the October 2020 VA telehealth opinion is somewhat flawed. That is, a veteran need not prove that a disability was “completely” (i.e., totally) caused by a service-connected disability to prevail on a secondary service connection claim. Rather, “proximate cause” need only be demonstrated. “Proximate cause” is defined as “[a] cause that directly produces an event and without which the event would not have occurred.” See Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010) (citing Black’s Law Dictionary 213 (7th ed. 1999)). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. Shyface v. Sec'yofHealth & Human Svs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (citing RESTATEMENT (SECOND) OF TORTS §§ 430 cmt. d. and 433 cmt. d. (1965)). A determination of proximate cause is basically one of fact, for determination by adjudication personnel. See VAOPGCPREC 6-2003 (October 28, 2003) and VAOPGCPREC 19-1997. Here, the evidence of record is equally balanced on whether or not the Veteran’s service-connected psychiatric disability would be a proximate cause of his current erectile dysfunction. The clinical picture here is quite complex. It appears from the clinical evidence of record that there are multiple causes and factors influencing his current erectile dysfunction. But it is significant that even though his testosterone levels returned to normal in November 2017 after repeated treatment for his hypogonadism with testosterone skin gel (Fortesta), a testosterone skin patch (Androderm), and testosterone injections, he continued to complain about erectile dysfunction symptomatology for which only Cialis provided some benefit. When it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, in awarding secondary service connection, the Board has attributed the Veteran’s erectile dysfunction to medication and symptomatology from his service-connected psychiatric disability. As currently codified, VA law defines the “benefit of the doubt” doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there is an approximate balance of the positive and negative evidence on the issue of secondary service connection for erectile dysfunction. Certain elements of both the positive and negative medical opinions and the positive and negative clinical evidence in this case are probative. All of the medical opinions and clinical evidence have their respective flaws as well. But there is no apparent basis for wholly rejecting the favorable medical opinions and clinical evidence of record. In light of the contrasting, yet equally probative medical opinions and clinical evidence in the present case, in such situations, the benefit of the doubt is resolved in the Veteran’s favor for erectile dysfunction. In making this favorable determination for the Veteran, the Board has considered that evidence is rarely neat and tidy. Therefore, it is expected that the Board will at times have to construct a complete narrative by filling in gaps with inferences and common sense. There is no requirement that all factual questions be resolved by reliance on direct, rather than circumstantial, evidence. The fact finding of the Board in this case is entitled to deference and is not clearly erroneous. To the extent that the Board made inferences and considered circumstantial evidence in its analysis of the evidence, this type of reasoning is well within the discretion of a fact finder. Although another fact finder may have declined to make the same inference, that does not mean that the Board in the present case is clearly erroneous. Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”). Lastly, the Board acknowledges the negative addendum opinion issued in January 2021, which found that the Veteran’s erectile dysfunction was not aggravated by his service-connected mental disability and prescribed medications. However, given that the Board finds that the Veteran’s erectile dysfunction is proximately due to the medications prescribed for his service-connected mental health disability, the negative aggravation opinion is not relevant. Accordingly, secondary service connection for erectile dysfunction is granted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). In implementing this award, the AOJ should award secondary service connection for erectile dysfunction on the basis that it is the direct result of the Veteran’s service-connected psychiatric disability, as opposed to aggravation. S. Merrick Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.