Citation Nr: 22018494 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-38 687 DATE: March 29, 2022 ORDER Entitlement to service connection for erectile dysfunction, secondary to service-connected posttraumatic stress disorder (PTSD), on a causation basis, is granted. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is granted. Entitlement to service connection for nephrolithiasis is denied. REMANDED Entitlement to service connection for prostate disability is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's erectile dysfunction was caused by his service-connected PTSD. 2. The evidence is at least evenly balanced as to whether the Veteran's COPD is related to his active military service. 3. The evidence is neither evenly balanced nor approximately so as to whether the Veteran's nephrolithiasis had its onset in active military service or is related to active military service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for erectile dysfunction, secondary to service-connected PTSD, on a causation basis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for COPD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for nephrolithiasis are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to November 1991. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from March 2012, May 2014, and October 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, denied the claims of service connection for erectile dysfunction, respiratory disability, prostate disability, and nephrolithiasis. In January 2016, the Veteran testified before a Decision Review Officer (DRO) at an RO. A transcript of that hearing is of record. In May 2020 and December 2021, the Board remanded the Veteran's claims on appeal for further development, to include obtaining VA treatment records from July 2021 onward, as well as readjudicating the claims on appeal and considering evidence received since the January 2021 Supplemental Statement of the Case (SSOC) when readjudicating. The Agency of Original Jurisdiction (AOJ) obtained updated VA treatment records and, in a January 2022 SSOC, considered evidence received after the January 2021 SSOC. The AOJ therefore substantially complied with the Board's December 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, air, or space service. 38 U.S.C. § 1110; 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). Service connection may also be established on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Entitlement to service connection for erectile dysfunction The Veteran contends that his erectile dysfunction is caused by the three medications he takes to treat his PTSD. In a February 2020 statement, the Veteran's attorney referenced two medical articles linking the medications of mirtazapine, gabapentin, and duloxetine to erectile dysfunction. In January 2022, a VA examiner noted the Veteran's diagnosis of erectile dysfunction and found that it was more likely that the vascular changes from the Veteran's diabetes resulted in his erectile dysfunction. For the following reasons, entitlement to service connection for erectile dysfunction, secondary to service-connected PTSD, on a causation basis, is warranted. The claim of service connection for erectile dysfunction on a direct basis has not been raised by the Veteran, his representative, or reasonably raised by the evidence of record. Therefore, the Board need not address this theory of entitlement for this claim. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) ("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 such a theory"). The evidence of record includes a negative nexus opinion and medical literature indicating an association between medications used to treat PTSD and erectile dysfunction. As is the case here, medical treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). For the foregoing reasons, the evidence is at least evenly balanced as to whether the medications used to treat the Veteran's service-connected PTSD caused his erectile dysfunction. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for erectile dysfunction, secondary to service-connected PTSD, on a causation basis, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for COPD A February 1987 service treatment record noted that the Veteran was short of breath and coughing with a runny nose and was diagnosed with a virus. A February 1989 service treatment record noted that the Veteran was seen for shortness of breath on exertion, and his lung x-ray was normal with no evidence of active chest disease. He had cervical lymphadenopathy that had resolved. May and August 1989 service treatment records noted exertional dyspnea. In August 1989, the Veteran was given a Bruce treadmill exercise test to evaluate his exertional dyspnea and was found to have a normal exercise response. A November 1989 service treatment record noted normal pulmonary function tests (PFTs) without exercise airway obstruction. A December 1989 service treatment record noted the Veteran had bronchitis. An August 1990 service treatment record indicated that the Veteran had a sore throat and enlarged tonsils. An August 1991 service treatment record indicated the Veteran suffered from ongoing pharyngitis with cough and sinus drainage. An August 1991 service treatment record diagnosed the Veteran with strep throat and chronic bronchitis. A September 1991 separation examination noted the Veteran had possible ongoing pharyngitis or sinus drainage. The Veteran was treated around that time for sinusitis and coughing white phlegm. A March 2003 private chest x-ray was normal. A February 2012 VA examiner found that the Veteran did not have a respiratory disability. May 2017 PFTs showed normal spirometry, and a May 2017 chest x-ray was normal. A May 2017 VA examiner found that the Veteran did not have a respiratory disability. The Veteran reported during the examination that he began coughing in 1995 a lot and had shortness of breath and difficulty taking a deep breath. He reported that he went to the doctor, and the doctor was unsure what was wrong with him. His symptoms, to include coughing, shortness of breath, and trouble taking a deep breath, have gotten progressively worse. In September 2020, a VA examiner noted the Veteran's diagnosis of chronic obstructive pulmonary disease (COPD). The VA examiner found that the Veteran's respiratory disability was less likely than not related to service. Record review noted some episodes of shortness of breath, cough during acute pharyngitis, and cervical lymphadenopathy which later resolved. The Veteran presented to sick call for shortness of breath with exertion several times in a four month period and underwent a Bruce treadmill test, as well as PFT. These tests were both normal, with results of normal functioning heart and lungs, making it as likely as not the Veteran was deconditioned from not physically training often and was having difficulty completing his assigned physical training. Moreover, the separation examination stated that the Veteran recently treated for sinusitis with white phlegm, thereby making it less likely than not that the Veteran's current COPD was incurred in or caused by the shortness of breath or any respiratory condition during service. For the following reasons, entitlement to service connection for COPD is warranted. The VA examiner in September 2020 noted the Veteran's diagnosis of COPD. Thus, the Veteran meets the current disability requirement. Multiple service treatment records indicated the Veteran's complaints of shortness of breath. Thus, the Veteran meets the in-service injury or disease requirement. The May 2017 VA examination is inadequate as it found the Veteran did not have a respiratory disability. As noted previously, the Veteran has been diagnosed with COPD. The Veteran has consistently reported throughout the appeal period that he experienced respiratory symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). Thus, the Veteran's reports are credible and competent as there is nothing to explicitly contradict them. Moreover, the September 2020 VA examiner did not reference the Veteran's lay statements in regard to continuous respiratory symptoms since service and concluded there was no nexus between the Veteran's COPD and military service based on normal chest and heart tests in service and respiratory symptoms that resolved in service. Based on the evidence of record as a whole, including the Veteran's lay statements of continuous respiratory symptoms since service, the Board concludes that, as the VA examiner found no nexus based on the evidence of the Veteran's respiratory symptoms in service and at separation, she would have found it was at least as likely as not the current disability was related to service if she had considered the Veteran's lay statements of continuous respiratory symptoms since service. At this point, the Board could remand the claim of service connection for COPD for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's COPD is related to his active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for COPD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for nephrolithiasis An August 1990 service treatment record indicated that the Veteran had urethritis. The Veteran's September 1991 separation examination was normal for complaints, diagnosis, or treatment for genitourinary disability. A September 1998 private treatment record noted that the Veteran had a history of kidney stones. A June 2005 private treatment note indicated that the Veteran had a history of renal calculus. An April 2010 private treatment record noted the Veteran had renal stones and underwent a urethral stent placement. A February 2015 private treatment record indicated the Veteran had right kidney pain. In January 2021, a VA examiner noted the Veteran's diagnosis of nephrolithiasis (kidney stones). The examiner indicated that, while the Veteran had non-sexually transmitted disease (STD) urethritis in service, there was no evidence of complaint or treatment for the claimed nephrolithiasis in service, and there was no pathogenesis between nephrolithiasis (kidney stones) and the urethritis in service. Thus, the Veteran's kidney stones were less likely than not related to service. For the following reasons, entitlement to service connection for nephrolithiasis is not warranted. The Veteran has been diagnosed with nephrolithiasis. Thus, he meets the current disability requirement. The Veteran did not indicate that he had treatment for, symptoms of, or diagnosis of nephrolithiasis in the years between separation from service and the September 1998 notation of a history of kidney stones, and he did not relay reports or diagnosis of nephrolithiasis during those years. Jandreau, 492 F.3d at 1377 (a layperson is competent to report a contemporaneous medical diagnosis). The Veteran's service treatment records from active duty do not contain any notations relating to symptoms, treatment, or diagnosis for nephrolithiasis. The Veteran's September 1991 examination at separation was normal and did not indicate symptoms of, treatment for, or diagnosis of nephrolithiasis. Post-service records reveal no mention of treatment or diagnosis for nephrolithiasis until 1998, approximately seven years after separation from service. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, is one factor, along with those above, including the lack of notations relating to symptoms, treatment, or diagnosis relating to nephrolithiasis in the Veteran's service treatment records, as well as lack of statements indicating continuous symptoms, that can be considered as evidence against the claim. 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 weight of the malady at issue). Moreover, the January 2021 VA opinion is entitled to some probative weight when reading the opinion as a whole and in the context of the evidence of record. The examiner indicated that, while the Veteran had non-STD urethritis in service, there was no evidence of complaint or treatment for the claimed nephrolithiasis in service, and there was no pathogenesis between nephrolithiasis (kidney stones) and the urethritis in service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). To the extent that the Veteran's lay statements suggest a relationship between his nephrolithiasis and service, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent. Jandreau, 492 F.3d at 1376, n.4. For the foregoing reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran's nephrolithiasis is related to active military service. Rather, the evidence at this time weighs persuasively against the claim of service connection for nephrolithiasis. The benefit of the doubt doctrine, 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for prostate cancer A December 2014 private treatment record noted the Veteran had a benign prostatic hypertrophy. A January 2021 VA examiner found that the Veteran did not have a prostate condition. Even though the January 2021 VA examiner found that the Veteran did not have a prostate condition at the time of the examination, the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, as it was noted in December 2014, during the pendency of the claim, that the Veteran had a benign prostatic hypertrophy, a remand is warranted to determine whether this disability is related to service. Accordingly, the matter is REMANDED for the following action: Obtain an opinion from an appropriate clinician as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's benign prostatic hypertrophy had its onset during the Veteran's active military service or is otherwise related to his active military service. The clinician should consider the Veteran's statements in regard to blood in urine in service and trouble urinating since service. The claims file should be provided to and reviewed by the clinician. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, Associate 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.