Citation Nr: 1301357 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 09-46 556A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus. 2. Entitlement to special monthly compensation (SMC) on account of the loss of use of a creative organ. 3. Entitlement to service connection for major depressive disorder, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Robert L. Rolnick, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from September 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 and August 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In June 2012, the Veteran testified at a hearing before the Board, a transcript of which is of record. The record was held open for 60 days to allow for the Veteran to submit additional evidence. In August 2012, the Veteran's representative submitted additional evidence in the form of a medical opinion. During the Board hearing, the Veteran's representative indicated that the Veteran was submitting a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In June 2012, an application for such a rating was submitted. As the issue of entitlement to a TDIU has not been developed for appellate review, it is referred to the agency of original jurisdiction (AOJ) for appropriate action. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Board finds it necessary to remand the case to the AOJ for additional development and consideration. First, VA has a duty to obtain relevant records in the custody of a Federal department or agency, including those from the Social Security Administration (SSA). See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). An April 2008 letter from SSA reflects that the Veteran was found to be disabled by SSA as of February 2003. The United States Court of Appeal for Veterans Claims (Court) has indicated that obtaining SSA records has relevance in that the evidence may provide a more accurate medical history. See, e.g., Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). In Golz v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that not all SSA records must be sought-only those that are relevant to the Veteran's claim. 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Federal Circuit stated that relevant records for the purpose of § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim. Id. In the Veteran's case, records from SSA may be relevant to his claims. Consequently, the case must be remanded to allow for the AOJ to request the Veteran's SSA records. Next, as to the claim of service connection for erectile dysfunction, the Veteran contends that service connection is warranted on a secondary basis to his already service-connected diabetes mellitus. See 38 C.F.R. § 3.310 (2012). During his July 2012 Board hearing, the Veteran testified that he was initially diagnosed with diabetes mellitus approximately four or five years earlier. The medical evidence shows that a diagnosis of diabetes mellitus was made at the VA Medical Center (VAMC) in Houston, Texas in January 2009 after laboratory testing showed high blood sugar. A history of high blood sugar dated to September 2008. At the hearing, the Veteran acknowledged that he had experienced symptoms of erectile dysfunction for ten or twelve years. The medical evidence reflects a history of erectile dysfunction since the 1990's and a December 2000 private treatment record notes a prescription for Viagra. Nevertheless, the Veteran maintains that he experienced symptoms of diabetes mellitus much earlier than the clinical diagnosis and that the diabetes mellitus could have caused the erectile dysfunction. In June 2010, the Veteran underwent VA examination in connection with the claim to address the nature and origin of his erectile dysfunction. The examiner reviewed the claims file and noted an accurate medical history. The Veteran reported having erectile dysfunction since the 1990's. The examiner provided diagnoses of diabetes mellitus and erectile dysfunction, and gave the opinion that the Veteran's erectile dysfunction is not a complication of his diabetes mellitus. This was so because of the onset date of the two diseases. The examiner also indicated that the erectile dysfunction is not a condition that is worsened or increased by the diabetes mellitus. As noted in the introduction, the Veteran's representative submitted a medical opinion in August 2012. The undated opinion is from one of the Veteran's treating medical providers at the VA outpatient clinic (VAOPC) in Lufkin, Texas. The opinion notes that erectile dysfunction is dependent on many factors including vascular disease, age, weight, and hormone levels. It was noted that the Veteran's last testosterone levels were normal and current labs were pending. The opinion concludes that it is difficult to determine the actual cause of the Veteran's erectile dysfunction, but it may be due to vascular compromise and/or weight, both of which are comorbid conditions associated with diabetes mellitus. In view of the current medical evidence, the Board finds that the claim should be remanded for an addendum opinion from the June 2010 VA examiner if available. The initial opinion from the examiner is not wholly adequate because it was based on an incomplete medical record as the Veteran's SSA records have not yet been obtained. Additionally, although the opinion appears to indicate that the Veteran's service-connected diabetes mellitus does not aggravate (i.e., make chronically worse) his erectile dysfunction, there was no supporting explanation for this portion of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). Also, the opinion that was submitted in August 2012 essentially indicates that it is medically possible for diabetes mellitus to cause erectile dysfunction, but no express opinion was provided as to whether this is so in the Veteran's case. Moreover, the opinion did not discuss the fact that the diagnosis of erectile dysfunction preceded the diagnosis of diabetes mellitus by approximately ten years. Thus, another opinion is needed to answer the salient questions of the case. Another examination should be afforded to the Veteran on remand if deemed necessary. As to the issue of entitlement to SMC on account of the loss of use of a creative organ, the Board finds that the claim is inextricably intertwined with the erectile dysfunction claim. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (holding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, adjudication of the Veteran's SMC claim must be deferred until the erectile dysfunction claim has been fully developed and adjudicated. It appears that the Veteran continues to receive regular treatment at the Houston VAMC and its associated VAOPC in Lufkin. Updated treatment records should be obtained in light of the remand. Lastly, the Board notes that the Veteran has properly perfected an appeal of the issue of entitlement to service connection for major depressive disorder that was denied in the August 2011 rating decision. On his VA Form 9 (Appeal to Board of Veterans' Appeals), received by the RO in January 2012, the Veteran requested a hearing before the Board by live videoconference. Although the Veteran has provided testimony on the erectile dysfunction and SMC claims, he has not yet been afforded the opportunity to testify as to the major depressive disorder claim. The Veteran has a right to provide hearing testimony on appeal. See 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700(a) (2012). In accordance with his request, this claim must be remanded to afford the Veteran an opportunity to present testimony on this claim during a videoconference hearing. See 38 C.F.R. § 20.700(e). Accordingly, this case is REMANDED for the following actions: 1. Obtain the Veteran's more recent treatment records (since January 2012) from the Houston VAMC and the Lufkin VAOPC, and associate the records with the claims folder. 2. Request from SSA the records pertinent to the Veteran's claim for Social Security disability benefits and the medical records relied upon concerning that claim. 3. Thereafter, refer the Veteran's claims file to the examiner who conducted the June 2010 VA examination or, if he is unavailable, to another suitably qualified VA medical professional for clarifying opinions as to the nature and etiology of the Veteran's erectile dysfunction. The examiner must be given full access to the Veteran's complete VA claims file and Virtual file for review, including any records obtained from SSA. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and Virtual VA file were reviewed. If, after review of the file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Thereafter, the examiner must address the following: a. State an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's erectile dysfunction is proximately due to or the result of his service-connected diabetes mellitus. b. State an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's erectile dysfunction is aggravated by his service-connected diabetes mellitus. In rendering the requested opinions, the examiner should not resort to mere speculation, but rather should consider that the phrase "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. 4. After the requested report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned for corrective action. 5. After undertaking any other development deemed appropriate, re-adjudicate the issues of entitlement to service connection for erectile dysfunction and entitlement to SMC on account of the loss of use of a creative organ. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond. 6. Finally, schedule the Veteran for a videoconference hearing before a member of the Board so he may provide testimony on the claim of service connection for major depressive disorder. Notify the Veteran and his representative of the date and time of the hearing. The claims file should be returned to the Board in advance of the hearing. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by VA. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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 is appealable to the Court. 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).