Citation Nr: 1301738 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-29 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis. 2. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 2007 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 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 appellant's Virtual VA claims file contains a general VA examination report from July 2011, which evaluates the appellant's service-connected intervertebral disc syndrome with degenerative arthritis and peripheral neuropathy of the right and left lower extremities. The evidence is relevant to the appellant's claim and dated after the most recent supplemental statements of the case of record for the appellant's increased rating claims, dated in September 2010. As the July 2011 VA examination report has not been considered in the first instance by the RO, the claim must be remanded to the agency of original jurisdiction (AOJ) prior to adjudication of the claim by the Board. See 38 C.F.R. § 19.31, 19.37. The September 2009 VA examination report indicates that the appellant reported having erectile dysfunction (ED) due to his service-connected intravertebral disc syndrome. In rating spinal disabilities, any associated objective neurologic abnormalities are to be rated separately. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (1). At the September 2009 VA examination, the VA examiner found that she was unable to diagnosis erectile dysfunction as an associated condition of back pain except by speculation. In a September 2009 addendum opinion, the VA examiner further clarified that the appellant was unable to achieve and maintain an erection. The VA examiner was unable to state that the ED was due to the diagnosed intravertebral disk syndrome. Although the September 2009 VA examiner addressed the appellant's ED, she did not provide a rationale for her inability to state whether the ED was associated with the appellant's service-connected back disability. A medical opinion is inadequate where it is noted that the etiology of a disability could not be resolved without resort to mere speculation, and the examiner does not provide any supporting explanation for that conclusion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). As the September 2009 VA examiner did not provide a rationale her inability to state whether the appellant's ED was due to his service-connected intervertebral disc syndrome, the Board finds that the VA opinion is inadequate. As ED is a potential neurologic manifestation of the appellant's service-connected intravertebral disc syndrome with degenerative arthritis, the Board finds that an adequate VA opinion is necessary to determine whether the appellant's low back disability has been manifested by ED to determining whether the appellant is entitled to a higher rating for his service-connected back disability. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file, including the appellant's Virtual VA file, to a VA clinician to determine whether it is at least as likely as not (likelihood of at least 50%) that the appellant's erectile dysfunction is related to his service-connected intervertebral disc syndrome with degenerative arthritis. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. If the VA clinician determines that an examination is necessary to provide an opinion, such should be accomplished. 2. Thereafter, readjudicate the issues on appeal of entitlement to an initial evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis, entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the right lower extremity and entitlement to an initial evaluation in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity, to include consideration of the evidence in the appellant's Virtual VA file. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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 Supp. 2011). ______________________________________________ MILO H. HAWLEY 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).