Citation Nr: 21022410 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-11 101 DATE: April 15, 2021 ORDER Service connection for erectile dysfunction is denied. Service connection for nervous tremors is denied. FINDINGS OF FACT 1. A preponderance of the evidence of record weighs against finding that the Veteran’s erectile dysfunction is causally related to service, to include due to exposure to herbicidal agents, or is proximately due to or aggravated by a service-connected heart disability. 2. A preponderance of the evidence of record weighs against finding that the Veteran’s nervous tremors are causally related to service, to include due to exposure to herbicidal agents, or is proximately due to or aggravated by a service-connected heart disability. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for nervous tremors have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1965 to January 1969, to include verified service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision. The Veteran’s service connection for peripheral neuropathy of the bilateral lower extremities claim was also appealed and has since been granted. These matters were previously remanded in April 2019 And April 2020 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). SERVICE CONNECTION In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a) (2019). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all of the evidence in the claims file, including the medical and lay evidence, to determine its probative value. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). 1. Service connection for erectile dysfunction Factual Background & Analysis The Veteran relates his erectile dysfunction to a service-connected heart disability. He states that his erectile dysfunction had its onset when his heart disability began to worsen and that he has lost all sexual functionality. See April 2016 notice of disagreement (NOD). On September 2019 VA examination the examiner found it to be less likely than not that erectile dysfunction is causally related to the Veteran’s service. The examiner attributed this disability to normal aging, noting that there is no evidence of psychiatric issues or medications that may be proximately causing this disability. The examiner further found that it was less likely than not that erectile dysfunction is proximately due to or was aggravated by a service-connected heart disability. The examiner stated that he could not establish proximate causation based on a review of the medical records or the medical literature. A September 2020 VA addendum medical opinion found it to be less likely than not that erectile dysfunction is causally related to service to include due to exposure to herbicidal agents. The examiner explained the Veteran’s medical records document an onset of erectile dysfunction in 2010. Further, the medical literature does not support a causal relationship between herbicide exposure and erectile dysfunction, particularly after a 40-year gap between exposure and onset of the disability. Regarding secondary service connection, the examiner opined that it is less likely than not that erectile dysfunction is proximately due to or aggravated by a service-connected heart disability. As a rationale, the examiner explained that the Veteran’s heart condition is supraventricular tachycardia/atrial flutter for which he is status-post ablation and no longer requiring medical treatment. A 2019 echocardiogram shows resolution of previously documented left ventricular abnormalities that were attributed to ischemic heart disease. He further stated that there is no causal nexus between the Veteran’s cardiac condition and his erectile dysfunction. The medical literature does not support a causal nexus between supraventricular tachycardia and erectile dysfunction, and the Veteran receives no medication that would aggravate erectile dysfunction. Therefore, he concluded that it was also less likely than not that erectile dysfunction was aggravated by a service-connected heart disability. After a thorough review of the evidence, the Board finds that a preponderance of the competent medical evidence of record weighs against finding that the Veteran’s erectile dysfunction is causally related to service, to include due to exposure to herbicidal agents, or is proximately due to or aggravated by a service-connected heart disability. The September 2020 VA addendum medical opinions were based on a review of the medical evidence of record, medical literature, and the examiner’s training, experience, and expertise as a medical professional. Further, the Board acknowledges the Veteran’s lay assertions that his erectile dysfunction is directly related to service or is proximately due to his service-connected heart disability. However, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship. 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Lay testimony and opinions are not competent to provide the requisite cause of this disability because this determination requires medical expertise and training which the Veteran has not been shown to possess. 38 C.F.R. § 3.159 (a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, lay assertions that the Veteran’s erectile dysfunction is related to his service or a service-connected heart disability are not considered to be competent because the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to the cause of a complex disability such as erectile dysfunction (which has observable symptoms but which can have multiple possible non-observable causes that may interact over a period of decades). In sum, there is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran’s erectile dysfunction is causally related to, or aggravated by, his service or a service-connected disability. Because the preponderance of the evidence weighs against the claim it must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Service connection for nervous tremors Factual Background & Analysis The Veteran contends that service connection for nervous tremors is warranted, to include as secondary to a service-connected heart disability. A September 2019 VA examination reports reflects a claimed onset of this disability in 1969. The Veteran reported that this condition was first manifested by anxiety and uncontrollable shaking hands when stressed. The September 2019 VA examiner ultimately provided negative nexus opinions with respect to direct and secondary service connection theories of entitlement, explaining that the Veteran’s diagnosis was due to genetics and age and there is no relation to service. In April 2020 the Board remanded this matter for addendum VA medical opinions finding that the September 2019 VA examiner’s negative nexus opinions were generally not supported by adequate rationales. A September 2020 VA addendum medical opinion determined that the Veteran’s peripheral neuropathy is presumptively related to exposure to herbicidal agents during service but that his nervous tremors are a genetic condition with no relation to service. The examiner explained the Veteran does not have Parkinson’s disease which is a disability that is presumptive related to exposure to herbicidal agents. Rather, the medical evidence of record is conflicting with regards to whether the Veteran has a diagnosis for nervous tremors. Further, the examiner opined that any nervous tremors disability is a genetic condition with no direct relation to service. Regarding secondary service connection, the examiner opined that it is less likely than not that nervous tremors are proximately due to or aggravated by a service-connected heart disability. As a rationale, the examiner reiterated that this disability is a genetically determined neurologic disorder and the medical literature does not support and relationship between nervous tremors and his service-connected heart disability. The examiner provided a relevant excerpt from a medical journal explaining that, in more than half of cases, essential tremors are an inherited autosomal dominant trait. Further, the examiner explained that there is no basis in the medical evidence or relevant medical literature to support the assertion that nervous tremors could be aggravated by the Veteran’s service-connected heart disability. After a thorough review of the evidence, the Board finds that a preponderance of the competent medical evidence of record weighs against finding that the Veteran’s nervous tremors are causally related to service, to include due to exposure to herbicidal agents, or is proximately due to or aggravated by a service-connected heart disability. The September 2020 VA addendum medical opinions were based on a review of the medical evidence of record, medical literature, and the examiner’s training, experience, and expertise as a medical professional. Further, the Board acknowledges the Veteran’s lay assertions that his nervous tremors are directly related to service or is proximately due to his service-connected heart disability. However, there is no competent medical evidence which substantiates a nexus or otherwise suggests a causal relationship. 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Lay testimony and opinions are not competent to provide the requisite cause of this disability because this determination requires medical expertise and training which the Veteran has not been shown to possess. 38 C.F.R. § 3.159 (a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, lay assertions that the Veteran’s nervous are related to his service or a service-connected heart disability are not considered to be competent because the Veteran is not medically qualified to provide evidence regarding matters requiring medical expertise, such as an opinion as to the cause of a complex disability of the neurological system (which has observable symptoms but which can have multiple possible non-observable causes, such as genetic predisposition, that may interact over a period of decades). In sum, there is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran’s nervous tremors are causally related to, or aggravated by, his service or a service-connected disability. Because the preponderance of the evidence weighs against the claim it must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.