Citation Nr: 21039867 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 01-06 925A DATE: July 1, 2021 ORDER Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for disability manifested by dizziness, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran's erectile dysfunction did not have its onset in service, is not otherwise related to an in-service injury or disease, and is not caused or aggravated by service-connected disability. 2. The Veteran's disability manifested by dizziness did not have its onset in service, did not manifest to a compensable degree within the first post-service year, is not otherwise related to an in-service injury or disease, and is not caused or aggravated by service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for erectile dysfunction, to include as secondary to service-connected disabilities, are not 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 disability manifested by dizziness, to include as secondary to service-connected disabilities, are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to July 1976. These matters initially came before the Board of Veterans' Appeals (Board) from January 2009 and October 2014 rating decisions. In the January 2009 decision, the agency of original jurisdiction (AOJ) denied service connection for erectile dysfunction. In July 2012, the Board remanded the claim of service connection for erectile dysfunction to schedule the Veteran for a Board hearing. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2013 hearing, and a transcript of the hearing has been associated with his claims file. In September 2013, the Board remanded the claim of service connection for erectile dysfunction for further development. In the October 2014 decision, the AOJ denied service connection for disability manifested by dizziness. In March 2015 and June 2016, the Board remanded the claim of service connection for erectile dysfunction for further development. In April 2017, January 2019, and October 2020, the Board remanded both remaining matters on appeal for further development. In the September 2013, October 2014, March 2015, June 2016, April 2017, January 2019, and October 2020 remands, the Board instructed the AOJ to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Catholic Health Initiatives/St. Vincent Health System and "Baptist"), obtain all outstanding VA treatment records, obtain any outstanding relevant Social Security Administration (SSA) records, and obtain medical opinions as to whether the Veteran's claimed disabilities are related to service or are caused or aggravated by service-connected disabilities. Pursuant to the Board's remands, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records (to include records from Catholic Health Initiatives/St. Vincent Health System and "Baptist") by way of May 2017 and July 2019 letters. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. Also, the AOJ contacted the SSA and requested any relevant SSA records, the SSA responded that no such records were in its possession (see e.g., a February 2014 response from the SSA), and the Veteran was notified of this fact by way of a June 2014 letter. Moreover, all relevant outstanding VA and private treatment records were obtained and associated with the claims file and medical opinions as to whether the Veteran's claimed erectile dysfunction and disability manifested by dizziness are related to service or are caused or aggravated by service-connected disabilities have been obtained. As explained below, the Board finds the most recent relevant opinions to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, in the October 2020 decision, the Board awarded a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from September 16, 2014 through September 18, 2017. The Board also remanded the issue of entitlement to a TDIU during the period prior to September 16, 2014 because the TDIU issue was raised as part and parcel of an appeal for higher ratings for various service-connected disabilities and the claim period on appeal for the Veteran's TDIU claim dated back to May 24, 2013 (the date of receipt of a claim for an increased rating for bronchial asthma). See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). A Decision Review Officer (DRO) subsequently awarded a TDIU, from December 3, 2007, by way of a February 2021 decision. As a TDIU has now been awarded for the entire claim period on appeal, the full benefit sought on appeal with respect to this issue has been granted. Accordingly, although the AOJ included the issue of entitlement to a TDIU prior to December 3, 2007 on a February 2021 supplemental statement of the case and the Veteran's representative listed this issue in a May 2021 Written Brief Presentation, the February 2021 decision fully resolved the appeal as to the TDIU issue and this matter is no longer before the Board. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. Organic diseases of the nervous system are included among the list of chronic diseases. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Although entitlement to service connection on any of the presumptive bases noted above may not be established, a veteran is not precluded from establishing service connection on a direct basis. See 38 U.S.C. § 1113 (b); 38 C.F.R. § 3.303 (d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). Service connection is also warranted for disability that is proximately due to, the result of, or aggravated by service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Entitlement to service connection for erectile dysfunction and disability manifested by dizziness, to include as secondary to service-connected disabilities The Veteran contends that he has current erectile dysfunction and disability manifested by dizziness and that these disabilities were caused by service or, in the alternative, are caused or aggravated by service-connected disabilities (to include medications taken for these disabilities). The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease or caused or aggravated by service-connected disability. The Board finds, for the following reasons, that, while there is evidence that the Veteran has current erectile dysfunction and disability manifested by dizziness, the claimed disabilities are not shown to have had their onset in service or within the first post-service year, to be otherwise related to a disease or injury in service, or to be caused or aggravated by any service-connected disability. Medical records, including the reports of VA male reproductive system conditions and ear conditions examinations dated in September 2019, reveal that the Veteran experiences current erectile dysfunction and benign paroxysmal positional vertigo. Thus, current disabilities have been demonstrated. The Veteran does not contend, and the evidence does not otherwise reflect, that he has experienced a continuity of dizziness symptomatology in the years since service. However, he has suggested that his erectile dysfunction had its onset in service when he was treated for testicular problems (described as a knot on his left testicle) and a venereal disease and that he has experienced continuous symptoms in the years since service. He is competent to report the history of his claimed disabilities (including a continuity of erectile dysfunction symptomatology in the years since service). However, his reports must be weighed against the other evidence of record and their credibility must be assessed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). There is no evidence of any complaints of or treatment for erectile dysfunction or dizziness in the Veteran's service treatment records and his June 1976 separation examination was normal other than for a joint sprain. The earliest clinical evidence of erectile dysfunction following service is reflected on a VA problem list which reveals that impotence of organic origin was added as a medical problem experienced by the Veteran in July 2001. Also, the earliest evidence of dizziness following service is reflected in the report of a May 2017 VA ear conditions examination, during which the Veteran reported that he had been experiencing dizziness since 1997. There is no earlier evidence of any dizziness following service. The Board acknowledges that there is lay evidence of earlier erectile dysfunction in that the Veteran has suggested a continuity of erectile dysfunction symptomatology in the years since service. As explained below, however, the Board finds that the Veteran's reports as to the history of his claimed erectile dysfunction (to include his reports of a continuity of symptomatology in the years since service) are not credible. The absence of any evidence of erectile dysfunction or dizziness problems for over two decades after the Veteran's separation from active service in July 1976, along with the inconsistent statements noted below, is one factor weighing against a finding that his current erectile dysfunction or disability manifested by dizziness were present in service or in the year or years immediately after service. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue)." Moreover, the Veteran has provided information and statements which are inconsistent with his reports of a continuity of erectile dysfunction symptomatology in the years since service. As explained above, he has suggested that his erectile dysfunction had its onset in service following treatment for a venereal disease and a knot on his testicle and that he has experienced continuous symptoms in the years since service. However, he reported during a May 2017 VA male reproductive system conditions examination that he had been experiencing "problems with erectile dysfunction since 2001." In light of the fact that there is no evidence of any complaints of or treatment for erectile dysfunction or dizziness in the Veteran's service treatment records, the fact that his June 1976 separation examination was normal other than for a joint sprain, the absence of any clinical evidence of erectile dysfunction for over two decades following his separation from service in July 1976, and the information and statements provided by the Veteran that are inconsistent with his reports of a continuity of erectile dysfunction symptomatology in the years since service, the Board concludes that his reports concerning the history of his claimed erectile dysfunction (including any reports of a continuity of symptomatology in the years since service) are not credible. In addition, the preponderance of the competent, probative opinions on whether there is a relationship between the Veteran's current erectile dysfunction and disability manifested by dizziness and service or service-connected disabilities weigh against the claims. The physician who conducted a November 2012 VA examination opined that it was not likely ("less likely as not") that the Veteran's erectile dysfunction was caused by service. He reasoned that there were no genitourinary complaints in 2000 per the Veteran's treatment records, that erectile dysfunction was noted in 2001 while he was taking medications for non service-connected hypertension, and that his hypertension medications can cause erectile dysfunction. The examiner who conducted an April 2014 VA examination explained that there was no evidence in the Veteran's service treatment records of being treated for a knot on his testicle or a venereal disease, and there was no such knot found during the April 2014 examination. The etiology of the Veteran's erectile dysfunction was most likely his medication. In an August 2014 addendum opinion, the April 2014 examiner opined that the Veteran's erectile dysfunction was not likely ("less likely than not") related to a venereal disease and that venereal disease is not medically a cause for erectile dysfunction. There was no further explanation or rationale provided for this opinion. In October 2015, the April 2014 examiner opined that the Veteran's erectile dysfunction was not caused by the benign mass in his left testicle which was present prior to service. There was no further explanation or rationale provided for this opinion. In December 2015, a VA podiatrist reviewed the Veteran's claims file and provided an opinion as to the etiology of his erectile dysfunction. As previously explained by the Board in a June 2016 remand, the medical professional who provided the December 2015 opinion was not appropriately qualified to provide an opinion with respect to erectile dysfunction. Therefore, no further discussion of this opinion is necessary. The physician who conducted a May 2017 VA male reproductive system conditions examination opined that the Veteran's erectile dysfunction was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. He reasoned that the Veteran had repeated reviews of his erectile dysfunction in April 2014 and June 2015 with no finding of erectile dysfunction related to service. The Veteran clearly reported that his erectile dysfunction started in 2001, and not following his scarring that occurred in 1974. At the time of his 1976 separation examination, he was found to have treated infected epididymitis and a residual left testicle scar. A venereal disease occurred during service. There was no evidence that the Veteran's erectile dysfunction was affected by the scarring of his epididymis, and there was no finding in medical literature that erectile dysfunction results from epididymal scars. It was not likely ("less likely than not"/"less than 50 percent probability") that the Veteran's erectile dysfunction had its onset in service or was otherwise etiologically related to service. The May 2017 examiner also opined that the Veteran's erectile dysfunction was not likely ("less likely than not"/"less than 50 percent probability") proximately due to or the result of his service-connected disability. The examiner reasoned that the Veteran had repeated reviews of his erectile dysfunction in April 2014 and June 2015 with no finding of erectile dysfunction related to service. The Veteran clearly reported that his erectile dysfunction started in 2001, and not following his scarring that occurred in 1974. At the time of his 1976 separation examination, he was found to have treated infected epididymitis and a residual left testicle scar. There was no finding in medical literature that erectile dysfunction results from epididymal scars and there was no history from the Veteran that his scar causes erectile dysfunction. Also, there was no finding that the scarring of the epididymis aggravated or caused erectile dysfunction. The Veteran was very clear that with lifting or intercourse, he had increased tenderness in his scar area. This does not cause him to experience erectile dysfunction. His current erectile dysfunction was not likely ("less likely than not"/"less than 50 percent probability") caused by his pre-existing left testicular condition. In November 2017, a VA physician reviewed the Veteran's claims file and explained, in pertinent part, that venereal disease that is treated appropriately should not result in long term consequences such as erectile dysfunction. There was no further explanation or rationale provided for this opinion. The physician who conducted the September 2019 VA male reproductive system conditions and ear conditions examinations explained in the male reproductive system conditions examination report that the Veteran's erectile dysfunction was likely due to the medications he was taking for non service-connected hypertension. The erectile dysfunction began after taking the medications and the medications are known to be associated with erectile dysfunction. As for the Veteran's dizziness, the September 2019 examiner explained in the ear conditions examination report that the Veteran reported intermittent light headedness that was consistent with benign paroxysmal positional vertigo. This is a common symptom that increases with age and is seven times higher in those older than 60 years. The examiner did not find this diagnosis to be related to the Veteran's service, one of his service-connected disabilities, or any of his medications. The Veteran's dizziness was a common symptom in the general population. The September 2019 examiner opined in a separate September 2019 opinion that the Veteran's erectile dysfunction was more likely due to his age and diabetes. He also explained that there was no chronic dizziness in service, at discharge from service, or for over a year after discharge from service, and that there was no dizziness due to service-connected disabilities. There was no further explanation or rationale provided for these opinions. In December 2020, a VA nurse practitioner reviewed the Veteran's claims file and provided opinions pertaining to his claimed erectile dysfunction and dizziness. The nurse practitioner opined that the Veteran's erectile dysfunction was not likely ("less likely than not") proximately due to, the result of, or aggravated by his service-connected adjustment disorder and depression or any medications. These opinions were based on the fact that the Veteran was diagnosed as having hypertension in 1997, that he had a history of alcohol, nicotine, marijuana, and cocaine abuse, that he was diagnosed as having erectile dysfunction in 2001, and that depression was diagnosed in 2003. Therefore, his erectile dysfunction was diagnosed before his behavioral health condition. The Veteran's erectile dysfunction was most likely due to his non service-connected hypertension and medications used to treat hypertension. There was no medical evidence to support a finding that the Veteran's erectile dysfunction, which began prior to his behavioral health diagnoses, was aggravated by these diagnoses. An August 2018 medication list was silent for any behavioral health medications, so there could not be any cause or aggravation by medications for the Veteran's erectile dysfunction. Overall, a nexus was not established. With respect to the Veteran's dizziness, the nurse practitioner opined in three separate opinions that the Veteran's claimed disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service or proximately due to, the result of, or aggravated by service-connected disability. The nurse practitioner reasoned that the Veteran's service treatment records (including the reports of his entrance and separation examinations) were silent for any complaints of dizziness. The Veteran was diagnosed with depression in 2003, was diagnosed with benign paroxysmal positional vertigo in 2013, and was not taking any medications for his dizziness. Medical literature does not support a finding that benign paroxysmal positional vertigo is caused or aggravated by any behavioral health condition, to include depression or adjustment disorder. A 2018 medication list and the report of a September 2019 VA examination did not show any medication use for benign paroxysmal positional vertigo or any behavioral health diagnosis. Overall, a nexus was not established and there was no causation or aggravation shown between the Veteran's benign paroxysmal positional vertigo and any service-connected disabilities or medications. Benign paroxysmal positional vertigo is one of the most common causes of vertigo, the sudden sensation that a person or the inside of their head is spinning. The disability causes brief episodes of mild to intense dizziness and is usually triggered by specific changes in the position of one's head. Often there is no known cause for benign paroxysmal positional vertigo, and this is called idiopathic benign paroxysmal positional vertigo. When there is a known cause, it is often associated with a moderate to severe blow to the head, and it most often occurs in people age 50 and older. In January 2021, a VA physician reviewed the Veteran's claims file and opined that his dizziness was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service, to include headaches in service. He reasoned that the relationship between the Veteran's claimed dizziness and headaches was not completely clear from the available information. The Veteran was diagnosed as having benign paroxysmal positional vertigo during the 2019 VA examination and dizziness and headaches were noted during the examination. Unfortunately, the nature of these complaints was not addressed, and they were not necessarily linked. The Veteran had not previously claimed a headache condition and there was no appropriate evaluation of a headache condition. The 2017 examination report noted headaches, but only discussed the Veterans dizziness, never fully linking the headaches. The Veteran reported a relationship to missing medications leading to dizziness and the improvement of dizziness while taking antidepressants. The examiner declined to diagnose an ear condition or benign paroxysmal positional vertigo. The Veteran was diagnosed as having benign paroxysmal positional vertigo in November 2019, at which time intermittent dizziness of 5 to 6 years duration was reported by the Veteran. Therefore, this suggests that he had a new condition arising 5 or 6 years ago. The Veteran's own given history is contradictory. The physician further reasoned that migraines may be associated with dizziness, but they do not cause benign paroxysmal positional vertigo. Any dizziness associated with a migraine would be a symptom or comorbidity with that migraine, and migraines have not been diagnosed and the Veteran has not claimed a separate headache condition. His benign paroxysmal positional vertigo is episodic and was not associated with migraines during the 2019 examination. In the absence of the appropriate evaluation of a possible headache disability and its establishment as service-connected, vertigo associated with headaches cannot be established. Based on the history as reported during the September 2019 examination, it appears that the benign paroxysmal positional vertigo is a new condition arising in or around 2013. Therefore, it was not likely ("less likely than not") that the Veteran's benign paroxysmal positional vertigo was due to or incurred in events in service or was necessarily related to headaches. A critical point needing establishment would be migraines associated with dizziness and the presence or absence of a separate vertiginous condition. Continuity would have to be addressed, as no current, objective documentation suggests continuity since service. The Veteran reported headaches and dizziness since 1997, and this contradicts the information from the 2019 examination. If such is not possible, it is less likely than not that the Veteran's benign paroxysmal positional vertigo is related to service. It is also less likely than not that he has a migraine headache condition causing dizziness. The April 2014, August 2014, October 2015, November 2017, and September 2019 opinions are all of minimal probative value because they are either not accompanied by any specific explanation or rationale or are, at least partially, based upon an inaccurate history. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993)); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The May 2017, December 2020, and January 2021 opinions, by contrast, are based upon examination of the Veteran, a review of medical literature and the Veteran's treatment records, and/or consideration of his reported history, and they are accompanied by specific rationales that are consistent with the evidence of record. Therefore, the May 2017, December 2020, and January 2021 opinions are adequate and entitled to substantial probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. Additionally, the Board notes the Veteran's contentions that he believes his erectile dysfunction is related to other genitourinary problems that he experienced in service and that his erectile dysfunction and dizziness are associated with his service-connected disabilities and medications taken for those disabilities. The Board also notes the contentions of the Veteran's representative in a May 2021 Written Brief Presentation that the Veteran's erectile dysfunction is related to anxiety or neck/back disabilities and that his dizziness may be related to neck disability, back disability, hearing loss, and/or Meniere's disease. The Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive questions presented in this case (i.e., whether any relationship exists between the Veteran's erectile dysfunction and disability manifested by dizziness and service or service-connected disability) are questions as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether the Veteran's dizziness is the result of a particular disability or whether there is a link between the Veteran's claimed disabilities and service or service-connected disability (where there is no credible evidence of any erectile dysfunction or dizziness for over two decades following service) is one requiring specialized knowledge and testing to understand the complex nature of the body systems. Neither the Veteran nor his representative have indicated that they have such experience. Their opinions on the question of nexus are therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran's current erectile dysfunction and disability manifested by dizziness and service or any service-connected disability, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's erectile dysfunction or disability manifested by dizziness had their onset during service, had their onset within the first year following service, that they are otherwise related to service, or that they are caused or aggravated by service-connected disability. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine is not for application, and service connection for erectile dysfunction and disability manifested by dizziness is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.