Citation Nr: 0307899 Decision Date: 04/24/03 Archive Date: 04/30/03 DOCKET NO. 99-01 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection on a secondary basis for impotence. (The issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities will be the subject of a later decision by the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The veteran had active military service from October 1986 to February 1998, and had an earlier period of active duty for training from August to November 1980. This matter comes before the Board on appeal of an April 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in February 2001. This case was remanded to the RO in May 2001 for further development; it was returned to the Board in February 2003. The issue of entitlement to a total rating based on unemployability due to service-connected disabilities has been developed for appellate review. The Board is currently undertaking additional development on this issue pursuant to authority granted by 67 Fed. Reg. 3099, 3104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002)). When the development actions are completed, the Board will provide notice of the development as required by Rule of Practice 903. See 67 Fed. Reg. 3099, 3105 (Jan. 23, 2002) (codified at 38 C.F.R. § 20.903). After giving the notice and reviewing the veteran's response to the notice, the Board will prepare a separate decision addressing this issue. FINDING OF FACT The veteran is not impotent. CONCLUSION OF LAW The veteran does not have impotence that is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310(a) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that during the pendency of the veteran's appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), was signed into law. This liberalizing law is applicable to the veteran's claim. See Holliday v. Principi, 14 Vet. App. 280 (2001) (the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). But see Dyment v. Principi, 287 F.3d 1377 (2002) ("the inference is nearly inescapable that section 3(a) of the VCAA ... was not intended to be given retroactive effect"). On August 29, 2001, VA promulgated final regulations to implement the provisions of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). Except for revisions pertaining to claims to reopen based on the submission of new and material evidence, which in any event are not applicable in the instant case, the final regulations are effective November 9, 2000, and "merely implement the VCAA and do not provide any rights other than those provided by the VCAA." See 66 Fed. Reg. at 45,629. After review of the record, the Board concludes that VA's duties under both the VCAA and the new regulations have been fulfilled. The record reflects that the veteran was provided with notice of the April 2000 rating decision denying service connection for impotence. In response to his notice of disagreement with the above rating decision, the veteran was provided with a statement of the case in September 2000 which notified him of the issue addressed, the evidence considered, the adjudicative action taken, the decision reached, the pertinent law and regulations, and the reasons and bases for the decision. The Board notes that the veteran was specifically provided in a November 2002 supplemental statement of the case with the text of the laws enacted by the VCAA and of the regulations implementing the VCAA. In addition, the RO in May 2001 advised the veteran of the evidence necessary to substantiate his claim, and specifically informed him of what evidence VA would obtain for him and of what evidence he was responsible for submitting. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Based on the procedural history of this case, it is the conclusion of the Board that VA has no outstanding or unmet duty to inform the veteran that any additional information or evidence is needed. The Board concludes that the statement of the case and supplemental statements of the case informed the veteran of the information and evidence needed to substantiate his claim. Moreover, and as noted above, the May 2001 correspondence notified the veteran as to which evidence would be obtained by him and which evidence would be retrieved by VA. It is clear from submissions by and on behalf of the veteran that he is fully conversant with the legal requirements in this case. With respect to VA's duty to assist the veteran, the Board notes that pertinent medical records from all relevant sources identified by the veteran were obtained by the RO. In addition, the record reflects that the veteran was afforded a VA examination in connection with his appeal in July 2001. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of the VCAA or the implementing regulations. Therefore, the veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual background Service connection is currently in effect for the following disabilities: C5-C6 herniated nucleus pulposus, left ear hearing loss, gastric ulcer disease, and residuals of a fracture of the nose. Service medical records are negative for any complaints, finding or diagnosis of impotence. The records show that the veteran underwent a vasectomy in December 1996. On file are VA treatment records for February 1998 to September 2002 which show that the veteran reported in January 1999 that he had experienced episodes in which he would lose his erection during sexual intercourse; he reported that this did not occur all of the time, and that he consistently used the same sexual position. The veteran was diagnosed with sexual dysfunction likely secondary to a psychological cause since he was able to achieve an erection, and as his sexual dysfunction occurred only on occasion. An April 2002 treatment note indicates that the veteran was informed of the possible sexual side effects of his psychiatric medication. In a January 1999 statement, the veteran indicated that his cervical spine disability had affected his sexual performance, in that he was sometimes unable to become aroused or to maintain an erection. At his February 2001 hearing before the undersigned, the veteran testified that his cervical pain would occasionally cause him to lose his erection, and that he sometimes would be unable to sexually perform at all. On file is the report of a July 2001 VA examination of the veteran, at which time he denied any history of urinary tract problems. He reported that he was normally able to achieve an erection through intercourse and ejaculation without difficulty, but that he experienced neck pain in certain sexual positions, and that the referenced pain would occasionally cause him to lose his desire. He indicated that he was able to function normally in other sexual positions. He denied using any measures to assist him with his erections. Physical examination was negative for any abnormalities, other than the presence of a granuloma from the prior vasectomy. The examiner concluded that the veteran had normal erectile function most times, but that neck pain in some positions caused re-direction of his focus with occasional loss of erection. In a July 2001 addendum to the examination report, the examiner indicated that he had reviewed the veteran's medical records, but believed that the veteran was not impotent. He noted that the veteran was able to achieve normal erections to ejaculation with normal vaginal penetrations. He also noted that the veteran's difficulties stemmed from the cervical pain caused by the particular sexual position used by the veteran, in that the veteran would lose his focus and then his erection, and noted that when the veteran used other sexual positions, he was able to engage in sexual intercourse without difficulty. In an August 2002 addendum, the examiner again concluded that the veteran did not have impotence, only occasional sexual dysfunction from neck pain. Analysis Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2002). Additional disability resulting from the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order for service connection to be granted for a claimed disability, there must be evidence of the current existence of such claimed disability. See Chelte v. Brown, 10 Vet. App. 268, 271 (1997); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Although the veteran contends that the pain from his service- connected cervical spine disability has made him impotent, the evidence on file shows that while he experiences sexual problems when using certain positions during sexual intercourse, he is not, in fact, impotent. His treating physicians noted that he was usually able to maintain an erection, and concluded that his difficulties were psychological in nature. The July 2001 VA examiner specifically addressed the veteran's complaints of sexual dysfunction and noted that the veteran was able to achieve an erection and ejaculation, and only experienced problems when using certain sexual positions and not others; the examiner concluded that this did not represent impotence, and in his addenda made clear that the veteran was not impotent. The Board notes that there is no evidence on file suggesting the presence of an underlying pathological basis for any sexual dysfunction. In short, there is no competent evidence of record showing that the veteran is impotent. While the veteran himself has asserted that he considers his occasional, and positional, sexual dysfunction to constitute impotence, since there is no indication that he is qualified through education, training or experience to offer medical diagnoses, as a layperson his statements as to medical diagnosis do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) (2002). As noted previously, there must be evidence of the current existence of a claimed disability in order for service connection to be granted for that disability. See Rabideau, supra. Since the evidence does not show that the veteran is impotent, his claim for the above disability must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection on a secondary basis for impotence is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.