ERECTILE DYSFUNCTION

Summary

The Veteran, an Army Veteran who served from February 1971 to November 1973 and again from February 1991 to May 1991, appeals the denial of service connection for erectile dysfunction. The claim was previously denied by the Board in October 2019, vacated by the Court of Appeals for Veterans Claims in September 2020, and remanded for further development, specifically addressing whether the condition was secondarily service-connected due to aggravation by service-connected hypertension or diabetes mellitus. The Veteran testified at multiple hearings, stating the erectile dysfunction began around 2007 and was secondary to his service-connected diabetes. However, the Veteran inconsistently reported the onset of the disability and denied its presence when seeking treatment for other conditions post-service. Medical evidence included multiple VA examinations. The June 2010 VA examiner opined the condition arose post-service and was not aggravated by diabetes. The January 2023 VA examiner found it less likely than not that the erectile dysfunction was proximately due to diabetes, citing other contributing factors like age, low testosterone, smoking, and obesity. The October 2023 VA examiner opined the condition was less likely than not caused by service or toxic exposures, attributing it to primary testicular failure and hypotestosteronism, and found it unrelated to diabetes or hypertension. The Board found the evidence persuasively against the claim, noting the post-service onset, inconsistent reporting, and the persuasive medical opinions attributing the condition to non-service related factors. Service connection for erectile dysfunction was denied.

Rationale

Post-service onset of erectile dysfunction; Inconsistent reporting of disability onset and presence; Persuasive medical opinions attributing condition to non-service factors; No nexus to service or service-connected diabetes mellitus

Full Decision Text

Citation Nr: 24002690
Decision Date: 01/18/24	Archive Date: 01/18/24

DOCKET NO. 16-01 418
DATE: January 18, 2024

ORDER

Service connection for erectile dysfunction is denied.

FINDING OF FACT

The Veteran's erectile dysfunction is not attributable to active military service, and has not been caused or aggravated by the service-connected hypertension or diabetes mellitus.

CONCLUSION OF LAW

The criteria for service connection for erectile dysfunction are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1971 to November 1973 and February 1991 to May 1991 in the United States Army, with additional service in the Alabama Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office.

In March 2019, the Veteran testified before the undersigned during a videoconference hearing.  A transcript of the hearing is included in the electronic claims file.  

In October 2019, the Board denied the claim for service connection for erectile dysfunction.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). 

In September 2020, the Court vacated the October 2019 Board's denial of the claim, and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion).  In doing so, the parties found that the Board erred in relying on a June 2010 VA examination report to the extent that the examiner had not adequately addressed the matter of secondary service connection based on aggravation.

In December 2020, the Veteran requested to appear before the Board for an additional hearing.  See Cook v. Wilkie, 908 F.3d 813, 819 (Fed. Cir. 2018) (holding that an appellant is entitled to an opportunity for a Board hearing following vacatur and remand from the Court, even if that appellant was previously given a Board hearing in the case.)  In June 2022, he again testified before the undersigned during a virtual hearing.  A transcript of the hearing is included in the electronic claims file.  

In October 2022 and September 2023, the Board remanded the claim for further development.

1. Service connection for erectile dysfunction is denied.

VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service.  This is referred to as a "service connection."  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Such secondary service connection is further warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(b).  In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims.

Additionally, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) recently established that exposure to burn pits and other toxins (BPOT) is presumed for "covered veterans," i.e., those who served in specific locations on or after specific dates
 is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(b).  In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims.

Additionally, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) recently established that exposure to burn pits and other toxins (BPOT) is presumed for "covered veterans," i.e., those who served in specific locations on or after specific dates.  38 U.S.C. § 1119.  While, as indicated in a December 2022 Memorandum, the Veteran qualifies as a "covered veteran" with presumed BPOT exposure under 38 U.S.C. § 1119, his erectile dysfunction is not among the diseases that can be presumed due to BPOT exposure.  Therefore, presumptive service connection due to BPOT exposure is not warranted under 38 U.S.C. § 1120.

Similarly, although a March 2023 Memorandum indicates that the Veteran was exposed to herbicide agents during military service, erectile dysfunction is not one of the diseases presumed to be associated with herbicide agent exposure.  Additionally, while a January 2023 Memorandum establishes that he qualifies as a "Persian Gulf Veteran" under 38 U.S.C. § 1117, the presumptions referable to Persian Gulf veterans are inapplicable as the record does not show a qualifying chronic disability.  See 38 C.F.R. § 3.317 (a)(1).  

The PACT Act further provides that if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a toxic exposure risk activity (TERA), then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the TERA.  38 U.S.C. § 1168; see also 38 U.S.C. §§ 1710(e)(4), 1119; 38 C.F.R. § 3.320.  Here, as indicated in December 2022, January 2023, February 2023, and March 2023 Memoranda, the Veteran participated in toxic exposure risk activities during service in both Vietnam and Iraq.  38 U.S.C. §§ 1117, 1119.  As discussed below, opinions in this regard have been obtained.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b).  Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

Turning to the evidence, the Veteran has current erectile dysfunction, documented on VA examination in January 2023.  At the March 2019 and June 2022 hearings, he testified that the disability is secondary to his service-connected diabetes mellitus.

A review of the record reveals that the Veteran's full service treatment records are unavailable.  In the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule.  O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

Following discharge, the Veteran inconsistently reported having erectile dysfunction.  For example, he specifically denied having erectile dysfunction while seeking treatment from private and VA providers in January 2015, May 2019, June 2019, December 2019, and August 2022.

As for the etiology of the disability, the record contains several opinions.  On VA examination in June 2010, the examiner noted that erectile dysfunction arose in 2003.  She opined that the disability is not a complication of diabetes mellitus as it preceded diabetes' onset in August 2008.  She further stated that the Veteran's erectile dysfunction has not been worsened or increased in severity by the diabetes mellitus.

On VA examination in January 2023, the Veteran reported that his erectile dysfunction began in 2007.  He stated that he got married that year, and was unable to perform sexually.  On review of claims file and examination of the Veteran, the examiner opined that it is less likely than not that
 the etiology of the disability, the record contains several opinions.  On VA examination in June 2010, the examiner noted that erectile dysfunction arose in 2003.  She opined that the disability is not a complication of diabetes mellitus as it preceded diabetes' onset in August 2008.  She further stated that the Veteran's erectile dysfunction has not been worsened or increased in severity by the diabetes mellitus.

On VA examination in January 2023, the Veteran reported that his erectile dysfunction began in 2007.  He stated that he got married that year, and was unable to perform sexually.  On review of claims file and examination of the Veteran, the examiner opined that it is less likely than not that the Veteran's erectile dysfunction is proximately due to or the result of diabetes.  As rationale, she stated that the disabilities are not medically related, and medical research does not indicate a causal relationship.  The examiner further opined that the erectile dysfunction was not at least as likely as not aggravated by diabetes.  Rather, the Veteran's advanced age, history of low testosterone, tobacco use, and obesity were contributing factors to his erectile dysfunction.

In June 2023, a VA examiner reviewed the claims file and opined that the Veteran's erectile dysfunction was less likely than not caused by his toxic exposure risk activities, considering the total potential exposure through all applicable military deployments and the synergistic, combined effects of all TERAs.  The examiner explained that erectile dysfunction is normally a vascular problem caused by endothelial damage and subsequent inhibition of vasodilation.  Risk factors for the development of the disability include diabetes, hypertension, arterial calcification, obesity, inflammation in the vascular endothelium, and smoking. 

In October 2023, another VA examiner reviewed the claims file and opined that the Veteran's erectile dysfunction was less likely than not incurred in or caused by military service, to include any toxic exposures therein.  Instead, the examiner found that the Veteran's erectile dysfunction is attributable to his non-service connected hypotestosteronism and hypogonadism.  As the disability is of testicular origin, the examiner opined it is unrelated to service and any toxic exposures, and has not been caused or aggravated by diabetes, hypertension, or treatment for diabetes or hypertension.  The examiner found that an implication of aggravation by diabetes or hypertension cannot be sustained given that the condition improved with testosterone treatments, and in light of the Veteran's inconsistent reports of experiencing erectile dysfunction.  The examiner explained, with citation to medical literature, that the Veteran's course of erectile dysfunction is consistent with that of primary testicular failure.  The disability, in the Veteran's case, is testosterone-dependent and has responded to testosterone injections.

Considering the pertinent evidence in light of the governing legal authority, the Board finds the evidence is persuasively against claim.  The probative evidence does not show that the erectile dysfunction is related to active military service, including any exposures therein, or that a chronic disability was incurred in service.  Rather, the post-service medical record reveals an onset of erectile dysfunction many years after discharge.  Indeed, the June 2010 VA examiner found an onset in 2003, and the Veteran reported to the January 2023 VA examiner that the disability arose in approximately 2007.  

The fact that the Veteran sought treatment for other conditions after service, but not erectile dysfunction, weighs against the credibility of any assertion that the current disability was present in and persisted since discharge.  See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013).  The claims file contains post-service treatment records dating back to 1993 documenting other complaints, without mention of erectile dysfunction.  Because he described other complaints and provided overall assessments of his health and functioning to his general practitioners, without mention of erectile dysfunction, it is reasonable to conclude that the disability was not present.  Id.; see also Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  Moreover, as noted above, the Veteran specifically denied having the disability while seeking treatment from medical providers on several occasions during the course of the appeal.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The medical opinion evidence is also persuasive.  The October 2023 VA examiner, in particular, addressed the Veteran's toxic exposures and his contentions of secondary service connection, but opined that the Veteran's current disability is not related to military service, including to any toxic exposure therein, and has not been caused or aggravated by the service-connected hypertension or diabetes
 Veteran specifically denied having the disability while seeking treatment from medical providers on several occasions during the course of the appeal.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

The medical opinion evidence is also persuasive.  The October 2023 VA examiner, in particular, addressed the Veteran's toxic exposures and his contentions of secondary service connection, but opined that the Veteran's current disability is not related to military service, including to any toxic exposure therein, and has not been caused or aggravated by the service-connected hypertension or diabetes mellitus.  Other etiologies, hypotestosteronism and hypergonadism, were identified and explained.  The examiner reviewed the reported history and symptoms in rendering the opinions and provided a rationale for the conclusions reached.  His opinion is further corroborated by that of prior VA examiners.

To the extent that the Board and Court previously found inadequacies with aspects of the older VA examination reports, those examination reports are not inadequate as a whole.  See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding, "even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight"; "it may be given some weight based upon the amount of information and analysis it contains.")  Moreover, the Board's decision here further relies on the October 2023 VA examination report, which has not been characterized as inadequate.

In addition, to the extent the June 2023 VA examiner stated that both diabetes and hypertension increase the risk of developing erectile dysfunction, the examiner did not provide an actual opinion as to whether the Veteran's service-connected diabetes or hypertension has been a cause of, or has aggravated, his erectile dysfunction.  As such, the statement does not constitute persuasive evidence in support of the claim.

The only evidence to the contrary of the VA examiners' opinions is the lay evidence.  The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as erectile dysfunction.  See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011).  Moreover, as noted above, the inconclusive and inconsistent nature of his reports regarding the onset and presence of erectile dysfunction renders his reports unreliable for purposes of determining the onset of the condition or of its relationship if any to any service-connected disability.  

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For all of the above reasons, the Board finds the evidence is persuasively against the claim.  Accordingly, service connection is denied.  In reaching this decision, the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Smith, 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.