Citation Nr: 1600844 Decision Date: 01/08/16 Archive Date: 01/21/16 DOCKET NO. 07-27 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for erectile dysfunction as secondary to service-connected status post anterior lumbar fusion. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (hereinafter Agency of Original Jurisdiction (AOJ)). In May 2011, the Board remanded the issue on appeal for additional development. In October 2014, after discovering a discrepancy in the Veteran's request for a hearing, the Board sent the Veteran a request to clarify whether he wished to appear at a hearing before the Board. In a subsequent October 2014 letter, the Veteran informed the Board that he did not wish to appear at a hearing, and asked that the Board consider the case on the evidence of record. A January 2015 Board decision, inter alia, denied a claim of entitlement to service connection for erectile dysfunction. The Veteran appealed this issue to the United States Court of Appeals for Veterans Claims (Court). By order dated October 20, 2015, the Court remanded this issue to the Board pursuant to the terms of a Joint Motion for Remand (JMR). Notably, the Court dismissed 5 additional issues which had been addressed in the Board's January 2015 decision. In addition to multiple paper claims folders, the record on appeal includes documents stored electronically in the Veterans Benefits Management System (VBMS) and Virtual VA. Thus, any future consideration of this appeal should take into consideration the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran has claimed that his erectile dysfunction has been caused or aggravated by his service-connected status post anterior lumbar fusion, to include as a side effect of prescribed medications. The parties to the JMR have determined that VA medical opinions dated January 2006 and January 2008 did not properly address the issue of whether the Veteran's erectile dysfunction has been aggravated beyond the normal progress of the disorder by service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (the Court held that "when aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation"). The Board, therefore, remands this case for an addendum opinion which fully addresses the aggravation prong of 38 C.F.R. § 3.310. Notably, the January 2006 VA examiner opined that the Veteran's prescriptions of oxycodone and Soma for his service-connected status post anterior lumbar fusion did not list erectile dysfunction as a side effect. The Board observes that, since May 2007, the Veteran has also been prescribed amitriptyline (also known as Elavil) to treat his back pain and sleep impairment. Thus, on remand, the VA examiner must consider this additional prescribed medication. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder records of the Veteran's VA treatment since June 2013. 2. Upon completion of the above, request an addendum opinion from the same examiner who conducted the January 2008. The examiner should opine whether it is at least as likely as not (a 50% or higher degree of probability) that: (1) the Veteran's erectile dysfunction has been caused by service-connected status post anterior lumbar fusion, to include as a neurologic manifestation, as secondary to lumbar spine pain and/or due to prescribed medications which include oxycodone, Soma and amitriptyline; OR 2) the Veteran's erectile dysfunction has been aggravated beyond the normal progress of the disorder by service-connected status post anterior lumbar fusion, to include as a neurologic manifestation, as secondary to lumbar spine pain and/or due to prescribed medications which include oxycodone, Soma and amitriptyline. In providing this opinion, the VA examiner should consider the following: * the Veteran's April 1995 report of low back pain aggravated with sexual activity; * the history of lumbar interbody fusion at L4-5 with anterior discectomy and insertion of titanium interbody fixation in January 1999; * a June 2001 private treatment record wherein the Veteran reported sexual dysfunction in the form of some impotence, and the examiner comment that his prescribed Zoloft can produce some sexual dysfunction; * the history of interbody fusion at L5-S1 in April 2002; * an April 2005 VA clinic record reflecting a prescription of Viagra due to complaint of erectile dysfunction with intact libido; * a January 2006 VA examination report wherein the examiner opined that the Veteran's erectile dysfunction was responsive to Viagra, and that it was less likely than not that erectile dysfunction was secondary to the medications of oxycodone and Soma; * VA clinic records since May 2007 reflecting a continuing prescription of amitriptyline to treat back pain and sleep impairment; and * a January 2008 VA examination report wherein the examiner opined that the Veteran's erectile dysfunction was less likely due to his service-connected lumbar problems on the basis that it would be expected that a erectile dysfunction caused by a spinal problem would not be reversible with use of medication. If the January 2008 examiner is not available, another appropriate physician should be requested to provide such opinion. The Veteran should only be afforded another appropriate VA examination if the examiner finds it necessary. All opinions provided should be supported by a clear rationale, and a discussion of the facts, the Veteran's lay statements, and medical principles. 3. Thereafter, and after any further development deemed necessary, the issue remaining on appeal should be reajudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).