13-05 680
13-05 680
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served on active duty Oct 1965–Oct 1967; later awarded service connection for diabetes mellitus (type II).
- Veteran claims erectile dysfunction (ED); initial RO decision denied service connection for ED; Board granted other claims but denied ED in Mar 2015.
- Court vacated the Board’s denial of ED in May 2015 and remanded for further development; Board ordered new exam in Feb 2017; a March 2017 VA exam was obtained.
- VA exams (Mar 2010 and Mar 2017) diagnosed ED and listed multiple risk factors (hypertension, hyperlipidemia, obesity, age, low testosterone, cerebrovascular disease, spinal stenosis) in addition to diabetes.
- The Mar 2017 examiner opined it was less likely than not that the service‑connected diabetes caused or aggravated the Veteran’s ED, citing preexisting ED predating diabetes and multiple competing risk factors.
- The Board found VA satisfied notice and assistance duties, considered the Mar 2017 exam adequate, and concluded the preponderance of evidence against secondary service connection for ED.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for ED as secondary to service‑connected diabetes | ED is caused or aggravated by service‑connected diabetes | Medical evidence and VA examiner opinion: multiple non‑diabetes risk factors and ED preceded diabetes; diabetes not more likely than not cause/agonist | Denied — preponderance of evidence against nexus |
| Adequacy of March 2017 VA medical examination/opinion | Representative argued examiner may not be a urologist or properly licensed; thus exam inadequate | VA: examiner is an MD, presumed competent; opinion reviewed records, interviewed and examined Veteran, provided rationale | Exam adequate; Board may rely on it |
| Competence of lay statements to establish medical nexus | Veteran asserts his ED is related to service/diabetes | VA: lay testimony competent for symptoms but not for medical etiology requiring expertise | Lay statements not competent to establish nexus; medical opinion controls |
| Compliance with remand instructions and duty to assist | Representative contended remand required supplemental opinion from original 2010 examiner | VA returned file to a suitably qualified examiner and obtained in‑person exam; presumption of regularity applies | Substantial compliance with remand; duty to assist satisfied |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (Board need only address procedural arguments raised by veteran)
- Cox v. Nicholson, 20 Vet. App. 563 (2007) (VA examiners other than physicians may be competent; Board may assume examiner competence)
- Stefl v. Nicholson, 21 Vet. App. 120 (2007) (requirements for adequacy of VA medical examinations and rationale)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (medical opinions must include sufficient rationale)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance rule and benefit of the doubt standard)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits on probative value of lay evidence for complex medical issues)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (presumption of competence for VA examiners)
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (elements required for service connection)