Citation Nr: 1307601 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-01 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for erectile dysfunction, including as secondary to service-connected prostate cancer. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active military duty from July 1969 to July 1971. This appeal to the Board of Veteran's Affairs (Board) is from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. As support for his claim, the Veteran testified at a travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). Following the hearing, the ALVJ held the record open for 30 days to allow the Veteran additional time to submit evidence in support of his claim. No additional evidence was submitted during this time frame. In a January 2010 statement, prior to the claim being certified to the Board, the Veteran withdrew the appeal of the issue of a reduction in disability rating for his service-connected prostate cancer. As such, the Board finds this issue is no longer in appellate status and is not before the Board at this time. The Board notes that a June 2009 notice of disagreement raises the issues of depression and an inability to control urine, as secondary to his prostate cancer. However, as these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The Board must remand this appeal to the AOJ via the Appeals Management Center (AMC), in Washington, DC for further development and consideration. VA will notify the Veteran if further action is required. REMAND The Veteran asserts that his currently diagnosed erectile dysfunction is due to or aggravated by his service-connected prostate cancer. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, §3.310 was revised to implement the Allen decision. The revised version of the regulation is for application in this case as the Veteran's claim was filed December 2008. The revised § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that to grant service connection on the basis of aggravation there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after the aggravation occurred. Here, the results of a December 2008 VA compensation examination, conducted in connection with the Veteran's withdrawn claim concerning service-connected prostate cancer, diagnosed the Veteran with erectile dysfunction. The examiner indicated the Veteran had suffered from erectile dysfunction for approximately two years, since 2006. This examination also indicated the Veteran's prostate cancer had its onset in March 2008. Therefore, the RO denied service connection for erectile dysfunction because it pre-dated the diagnosis of prostate cancer. However, the December 2008 VA examiner did not determine whether the Veteran's prostate cancer aggravated his currently diagnosed erectile dysfunction. Thus, the December 2008 examination report is inadequate and this matter must be remanded to afford the Veteran a new VA examination to determine the nature and etiology of his erectile dysfunction. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one). Accordingly, the case is REMANDED for the following action: 1. The AMC must obtain any outstanding private or VA treatment records associated with this claim. Any response received should be memorialized in the Veteran's VA claims file, either physically or electronically. 2. Schedule the Veteran for a VA examination in order to determine the nature and etiology of his erectile dysfunction. The entire claims file, to include any relevant documents in the Veteran's electronic claims file in Virtual VA, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should opine as to the following: a) Is it at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's erectile dysfunction had its clinical onset in service or is otherwise related to service; b) Is it at least as likely as not (a 50 percent or higher degree of probability) that erectile dysfunction is proximately due the Veteran's service-connected prostate cancer? c) Is it at least as likely as not (a 50 percent or higher degree of probability) that the erectile dysfunction has undergone a permanent increase in severity due the Veteran's service-connected prostate cancer, and if so, what measurable degree of erectile dysfunction is due to his service-connected prostate cancer? If the VA examiner finds that the Veteran's erectile dysfunction is aggravated by the service-connected prostate cancer, the examiner MUST identify the degree of disability that exists over and above the degree of disability that would exist without the aggravation caused by the service-connected prostate cancer disability. In other words, the examiner must determine the baseline level of severity before any aggravation caused by the service-connected disability. The examiner should be instructed that aggravation of a disability (in this case, erectile dysfunction) by a service-connected disability (in this case, prostate cancer) will not be conceded if the baseline level of severity (without the aggravation caused by the service-connected disability) cannot be established by medical evidence. A complete rationale must be provided for all opinions. If any opinion cannot be provided without resort to speculation, the examiner must so state and then provide a rationale for why the requested opinion could not be provided without resort to speculation. 3. Then, readjudicate the claim in light of the additional evidence. If the claim is not granted in full, send the Veteran a supplemental statement of the case and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Veteran 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). _________________________________________________ M.N. HYLAND Acting 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).