Citation Nr: 1631720 Decision Date: 08/09/16 Archive Date: 08/12/16 DOCKET NO. 13-20 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service connected posttraumatic stress disorder (PTSD), ischemic heart disease, lumbar spinal degenerative joint disease, hypertension, or prostatitis, and the medications taken in treatment of those service-connected conditions, and/or as due to Agent Orange exposure. 2. Entitlement to special monthly compensation (SMC) for the loss of use of a creative organ. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jack S. Komperda, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to March 1982. He served in Vietnam from October 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's claim was last before the Board in December 2015 and was remanded for additional development. For the reasons discussed below, there has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has claimed various theories of entitlement for his erectile dysfunction. In his August 2011 VCAA Response, January 2012 notice of disagreement, and an August 2015 written statement, the Veteran has asserted that that his erectile dysfunction is due to his herbicide exposure in Vietnam. The Veteran's personnel file indicates that he served within the Republic of Vietnam from October 1967 to October 1968, and is therefore presumed to have been exposed to herbicides. The Veteran has also asserted that his symptoms began in the 1970s during service, in his August 2011 VCAA response and August 2015 written statement. He has also argued that it was due to an in-service surgery that he characterized as an "invasive penile surgery." The October 1970 clinical report is of record in the service treatment records (STRs). The medical evidence of record includes numerous opinions addressing the Veteran's various secondary service connection claims. In December 2015, the Board remanded the Veteran's claim to obtain addendum opinions from a VA examiner that addresses the Veteran's theory of direct service connection based on either in-service onset due to in-service surgery or symptoms, herbicide exposure, or aggravation of the condition by service-connected prostatitis. In the remand instructions, the examiner was asked to address separate questions concerning the Veteran's various theories of entitlement on both a direct and secondary basis. In January 2016, a VA examiner concluded that the Veteran's erectile dysfunction (ED) was less likely than not (less than 50 percent probability) proximately due to or caused by Agent Orange exposure in service, his military service, to include in-service symptoms as reported by the Veteran; in-service treatment for prostatitis; or the October 1970 surgery during service, PTSD, hypertension, ischemic heart disease, degenerative joint disease of the lumbar spine, or prostatitis, or all of these in conjunction, to include the medications taken for these conditions. The VA examiner further stated that the Veteran's ED was less likely than not (less than 50 percent probability) permanently aggravated beyond its natural progression by service-connected PTSD, hypertension, ischemic heart disease, degenerative joint disease of the lumbar spine, or prostatitis, or all of these in conjunction, to include the medications taken for these conditions. With respect to certain theories of entitlement, the January 2016 VA examiner's opinion lacks an adequate rationale and is thus inadequate for rating purposes. In particular, the VA examiner did not explain his negative opinion with respect to the Veteran's theory that his ED was due to in-service herbicide exposure or the aggravation prong of this secondary service connection issue. In light of the above, a remand to secure a supplemental medical opinion is necessary. The issue of entitlement to SMC is inextricably intertwined with the issue of entitlement to service connection for erectile dysfunction; accordingly, adjudication of that matter will be deferred until further development of the inextricably intertwined issue is completed. Gurley v. Peake, 528 F.3d 1322 (Fed. Cir. 2008) (noting that remand of inextricably intertwined claims was warranted for reasons of judicial economy even in absence of administrative error); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the examiner who provided the Veteran's January 2016 VA medical opinion for supplemental comment with regard to his claim for service connection for erectile dysfunction, to include as secondary to his service-connected disabilities. The claims file, to include a copy of this Remand, must be made available to the examiner for review prior to the exam. The examiner is requested to provide the reasoning/his rationale behind his January 2016 medical opinions addressing the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is due to his conceded Agent Orange exposure in service, regardless of the disorder not being on the presumptive list? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is caused by service-connected PTSD, hypertension, ischemic heart disease, degenerative joint disease of the lumbar spine, or prostatitis, or all of these in conjunction, to include the medications taken for these conditions? In particular, was any medication the Veteran took at any time (i.e. in the past) for a service-connected disability the cause of his current ED? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction is aggravated (permanently worsened) by service-connected PTSD, hypertension, ischemic heart disease, degenerative joint disease of the lumbar spine, or prostatitis, or all of these in conjunction, to include the medications taken for these conditions? In providing these opinions, the examiner must consider and discuss as necessary the following: 1) conceded Agent Orange exposure; 2) STRs showing treatment in the urology clinic throughout 1970 for urethral discharge, warts, and prostatitis, October 1970 hospitalization for urethral meatotomy, panendoscopy, and cauterization of warts in the fossa navicularis, a February 1971 cystoscopy, and an April 1972 report of intermittent prostatitis during the prior two years; 3) private treatment records showing the Veteran's June 1998 denial of any impotence and September 1998 report of a lack of erections since the switch to Diovan; 4) private treatment records showing a switch in hypertension medications in July 1998 from Atenolol to Diovan; and 5) the Veteran's medications, to include beta-blockers, painkillers, and muscle relaxers, including Felodipine, Losartan, Amiodarone, Amlodipine, Lisinopril, Metoprolol, Plavix, Pradaxa, Hydrochlorothiazide, Hydrocodone, Gabapentin, Eidola, Furosemide, Simvastatin, Cyclobenzaprine, Etodolac, and Atorvastatin. Detailed rationale is requested for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After conducting any other development deemed necessary, readjudicate the Veteran's claims. If any benefit sought remains denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond. The case should then be returned to the Board, if otherwise in order, for further appellate review. The Veteran 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 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).