Citation Nr: 1523767 Decision Date: 06/04/15 Archive Date: 06/16/15 DOCKET NO. 13-29 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for erectile dysfunction. 2. Entitlement to a compensable evaluation for penile herpes simplex. 3. Entitlement to a compensable evaluation for scar, residual of an appendectomy. 4. Entitlement to a compensable evaluation for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who had active, honorable service from December 15, 1987 to January 13, 2009. His service for the period from January 14, 2009 to June 30, 2010 is considered dishonorable. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). The RO denied service connection for erectile dysfunction, and granted service connection for penile herpes simplex, residual scar from an appendectomy and for hemorrhoids. Each of these disabilities was rated noncompensable. The veteran has disagreed with the denial of service connection, and the ratings assigned for these disabilities. Additional issues were addressed on the August 2013 statement of the case. In his substantive appeal received in October 2013, the Veteran indicated that he only wanted to appeal the issues listed on the cover page. This decision, accordingly, is limited to those issues. The issues of service connection for psychiatric and gastrointestinal disabilities have been raised by the record at the June 2014 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of increased ratings for penile herpes simplex, scar, residual of an appendectomy and hemorrhoids are REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's erectile dysfunction is shown to have had its inception in service. CONCLUSION OF LAW Service connection for erectile dysfunction warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The VCAA redefined VA's duties to notify and assist a VA claimant in the development of a claim. It applies in the instant case. However, as this decision grants the benefit sought, there is no reason to belabor the impact of the VCAA on the matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background and Analysis The Board has reviewed all of the evidence in the appellant's VA record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The service treatment records show that in July 2005, the Veteran reported he had a problem with desire and attaining and maintaining erections. The examiner noted that Sildenafil was not indicated at that time. A December 2009 report of medical history (during the Veteran's dishonorable period of service) shows the Veteran had erectile dysfunction and had taken Levitra before sexual activity. It was indicated it was diagnosed in June 2005 and that he was still taking medication. On September 2010 VA general medical examination, the Veteran stated he had been having problems with erectile dysfunction for "some years." He noted the problem came on gradually. The diagnosis was erectile dysfunction. VA outpatient treatment records show the Veteran was seen in March 2013 for complaints of erectile dysfunction. It was noted he had run out of medication for it. In June 2014, the Veteran submitted a medication profile that showed Levitra was prescribed in April and June 2008, and again in July 2009. The Board notes that while the Veteran's name is listed on this profile, the Social Security number listed is apparently his wife's. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The record reflects that the Veteran first reported problems relating to erectile dysfunction during his honorable period of service. He was apparently prescribed medication for it during that time. He was diagnosed with erectile dysfunction following the September 2010 VA examination. In the absence of evidence to the contrary, resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection is warranted for erectile dysfunction. ORDER Service connection for erectile dysfunction is granted. REMAND The Veteran also asserts that compensable ratings are warranted for penile herpes simplex, residual scar from an appendectomy and for hemorrhoids. In his substantive appeal received in October 2013, the Veteran asserted that he received treatment from a private physician for each of these disabilities. The Board acknowledges that by letter dated in December 2013, the RO advised the Veteran that he could submit such evidence to the VA, or have the VA assist him in providing that evidence. No response was received. During the June 2014 hearing before the undersigned, the Veteran testified he had painful flare-ups of herpes simplex about every two months, that his appendectomy scar was painful and that he had hemorrhoids. The most recent VA examination for these disabilities was conducted in September 2010. The United States Court of Appeals for Veterans Claims has held that where the veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Under 38 C.F.R. § 3.326(a) (2014), a VA examination will be authorized where there is a possibility of a valid claim. Accordingly, the case is REMANDED for the following action: 1. Please ask the Veteran to identify all providers of evaluations and/or treatment (VA and non-VA) he has received for herpes simplex, appendectomy scar and hemorrhoids since 2010, and to submit authorizations for VA to secure records of all such evaluations and treatment from any private providers. Then, secure complete clinical records of the evaluations and treatment from all providers identified that are not currently associated with the record on appeal. 2. Please arrange for VA examinations to determine the current severity of the Veteran's penile herpes simplex, residual scar of an appendectomy and hemorrhoids. The Veteran's record must be reviewed by the examiners in conjunction with the examinations. All indicated studies must be completed. The rationale for any opinion should be set forth. 3. The AOJ should then review the record and readjudicate the claims on appeal. If any remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs