Citation Nr: 1301323 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-35 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from July 1966 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The record reflects that the Veteran requested a Travel Board hearing but that he subsequently cancelled the request. The Board notes that the issue of entitlement to service connection for post-traumatic stress disorder (PTSD) was also originally developed for appellate review. In a September 2010 Decision Review Officer Decision, service connection was granted for PTSD. As a result, that issue has been resolved and is not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for erectile dysfunction, which he claims is causally related to or aggravated by his service-connected diabetes mellitus. Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability, which is proximately due to, or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a non service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The evidence of record shows that the Veteran has erectile dysfunction and, as noted above, service connection is in effect for his diabetes mellitus. However, the current medical evidence does not provide an adequate basis on which the Board may render a decision in this case. In this respect, the Board acknowledges that a June 2007 VA examiner opined that the Veteran's erectile dysfunction was "at least as likely as not due to neuropathy of diabetes mellitus and more likely that not due to testicular atrophy." Both cannot be true. The erectile dysfunction cannot be "at least as likely" due to one condition and at the same time "more likely" due to another condition. The rationale provided by the VA examiner was that the physical examination revealed that the Veteran had bilateral testicular atrophy and that testosterone is "expected to be very very low in testicular atrophy and impotence happens due to low testosterone." Although the VA examiner appears to have ultimately concluded that the Veteran's erectile dysfunction is due to his testicular atrophy, the Board finds that the opinion still needs clarification especially in light of a conflicting medical opinion of record, namely, that of S.R., M.D. In identical statements dated in January and October 2010, S.R., M.D., reported that the Veteran was under his medical care for erectile dysfunction and that this was "felt to be secondary to his diabetes mellitus and hypertension." However, Dr. S.R.'s opinion is also inadequate as Dr. S.R. did not provide any supporting rationale for the opinion and did not point to any clinical data to support the conclusions. In addition, the VA examiner did not provide an explanation as to why the Veteran's erectile dysfunction is not due to his diabetes mellitus. Moreover, the VA examiner did not provide a specific opinion as to whether the Veteran's erectile dysfunction is aggravated by the service-connected diabetes mellitus. See 38 C.F.R. § 3.310. Based on the current evidence of record, the Board finds that the Veteran should be afforded a new VA examination to clarify the nature and etiology of his erectile dysfunction. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a new VA medical examination for the purposes of determining the nature and etiology of his current erectile dysfunction. The claims file must be provided to the examiner for review in connection with the examination. After examining the Veteran and reviewing the claims file, including the service treatment records, the examiner should provide an opinion as to whether erectile dysfunction is at least as likely the result of a disease or injury, if any, in service as opposed to its being more likely the result of some other cause or factors. The examiner should also provide an opinion as to whether erectile dysfunction is at least as likely caused by or aggravated by the service-connected diabetes mellitus as opposed to its being more likely the result of some other cause or factors. By aggravation the Board means a permanent increase in the severity of the underlying disability beyond its natural progression. In rendering this medical opinion, the examiner is asked to comment on the findings made by the VA examiner in the June 2007 VA examination report and the statements made by Dr. S.R. in January and October 2010. The examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2012), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2012). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).