Citation Nr: 1314711 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-39 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as due to a service-connected psychiatric disability. 2. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease, hiatal hernia, Barrett's esophagus, and irritable bowel syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from May 1957 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO). While the Veteran's appeal was in remand status, his claim for entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder, was granted in an August 2012 rating decision. This action constitutes a full grant of the benefit sought on appeal with respect to this issue, and it is no longer before the Board. In March 2011, the Veteran testified before the Board at a hearing held in St. Petersburg, Florida. In a March 2013 letter from the Board, the Veteran was advised that the Veterans Law Judge who conducted the hearing in 2011 was no longer employed by the Board. Since the regulations provide that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal, the Veteran was asked if he wished to have another hearing before another member of the Board. 38 C.F.R. § 20.707 (2012). The Veteran did not respond to the Board's March 2013 letter; accordingly, the Board will assume that he does not wish to have another hearing, and will proceed with the adjudication of his appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In June 2011, the Veteran's claims were remanded to the RO in order for the RO to obtain VA medical opinions with regard to the etiology of the Veteran's erectile dysfunction and gastrointestinal disability. Although the Veteran underwent the scheduled examinations, review of the opinions provided reflects that they are inadequate upon which to base an appellate decision. Barr v. Nicholson, 21 Vet. App. 303, 312 (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). The Veteran underwent a VA gastrointestinal examination in May 2012, and the examiner diagnosed gastroesophageal reflux disease (GERD), hiatal hernia, and Barrett's esophagus. The examiner did not provide an opinion as to the etiology of the Veteran's gastrointestinal diseases, and stated that the issue could not be resolved without resorting to mere speculation. The examiner reported that there were no service treatment records documenting any medical condition that might be related to the Veteran's irritable bowel syndrome (IBS), and noted a vague association between IBS and a history of sexual trauma. A separate May 2012 opinion, provided by a different VA examiner, found that there was no indication that the Veteran was treated for GERD during service, and that the cause of his GERD, hiatal hernia, and Barrett's esophagus was most likely related to his intake of ibuprofen and aspirin. With regard to any effect of the Veteran's service-connected psychiatric disability on his gastrointestinal disability, the examiner referred to the VA psychiatric examination for further assessment. However, the VA psychiatric examination did not address the etiology of the Veteran's gastrointestinal disability. In an August 2012 addendum to the first May 2012 gastrointestinal examination, the VA examiner stated that the issue of etiology could not be resolved without resorting to mere speculation, although there is a vague association between IBS and psychiatric disabilities. The Board acknowledges the May 2012 and August 2012 VA examiner's conclusion that an opinion as to whether the Veteran's currently diagnosed IBS was caused or aggravated by his service-connected psychiatric disability would require speculation because there is no strong evidence in the medical literature confirming a definite connection between those two medical conditions. However, that examiner did not provide an opinion as to whether any of the Veteran's other diagnosed gastrointestinal disabilities, including GERD, hiatal hernia, or Barrett's esophagus, were caused or aggravated by his service-connected psychiatric disability. Additionally, the second May 2012 VA examiner stated that there was no indication that the Veteran was treated for a gastrointestinal disability during service, and concluded that the Veteran's gastrointestinal disability was likely related to ibuprofen or aspirin use. However, review of the service treatment records reflects that the Veteran did complain of intestinal trouble during service in May 1957 as a result of having had part of his small bowel removed following an appendectomy in April 1956. None of the VA gastrointestinal examinations address this positive evidence of symptomatology during service. Accordingly, the Veteran should be provided with a new VA gastrointestinal examination to determine whether any of his diagnosed gastrointestinal disabilities, including GERD, hiatal hernia, Barrett's esophagus, or IBS are directly related to his active duty service or whether they were caused or aggravated by his service-connected psychiatric disability. The Veteran was provided with a VA examination addressing the etiology of his erectile dysfunction in May 2012. The examiner diagnosed erectile dysfunction but concluded that the erectile dysfunction was not related to service because there was no treatment for erectile dysfunction during service. The examiner referred to the VA psychiatric examination for further assessment. In a July 2012 addendum to a VA psychiatric examination, the psychologist stated that the Veteran did not have erectile dysfunction, and that his symptoms of decreased libido were merely a symptom of his service-connected psychiatric disability. The VA examiner did not address the many diagnoses of erectile dysfunction provided by urologists over many years in the VA medical records. The Board does not find the July 2012 addendum provided by the VA psychiatrist to be significantly probative in light of the numerous diagnoses of erectile dysfunction by urologists throughout the medical records. As the May 2012 VA examination, which diagnosed erectile dysfunction, did not provide an opinion as to whether the Veteran's erectile dysfunction was caused or aggravated by his service-connected psychiatric disability, the Board believes that a supplemental opinion from that examiner addressing that issue would be helpful. If the VA examiner who conducted the May 2012 examination is no longer available, the Veteran should be provided with a new VA examination to determine the etiology of his diagnosed erectile dysfunction. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Schedule the Veteran for a new VA gastrointestinal examination to determine the etiology of all diagnosed gastrointestinal disabilities, to include GERD, hiatal hernia, Barrett's esophagus, and IBS. Ask the examiner to review the Veteran's entire claims file, service treatment records which show a complaint of intestinal trouble, prior examination reports of record, as well as the Veteran's lay statements and testimony before the Board. Based on a review of the evidence of record, the examiner should provide a diagnosis of each current gastrointestinal disability. For each disability, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) related to the Veteran's military service (to include the in-service evidence of intestinal trouble as well as the in-service sexual trauma), or whether it is at least as likely as not (50 percent probability or more) that it was caused or aggravated by the Veteran's service-connected psychiatric disability. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. The examiner must provide a thorough explanation and rationale for all opinions provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must state that fact, and provide the reasons why an opinion would require speculation as well as indicate what evidence would be necessary to form an opinion. 2. Obtain a supplemental opinion from the May 2012 examiner (or if unavailable, a urologist). Provide the claims file to the examiner and ensure that it is reviewed. Following a review of the service and post-service medical records and other evidence of record, the examiner should state whether it is at least as likely as not (50 percent probability or more) that the Veteran's current erectile dysfunction is directly related to his active duty service (to include his in-service sexual trauma) and whether it is at least as likely as not (50 percent probability or more) that it was caused or aggravated by his service-connected psychiatric disability. Aggravation is defined as a permanent worsening beyond the natural progress of the disability. The examiner must provide a thorough explanation and rationale for all opinions provided. If the examiner cannot provide a requested opinion without resorting to speculation, the examiner must state that fact, and provide the reasons why an opinion would require speculation as well as indicate what evidence would be necessary to form an opinion. 3. The RO must notify the Veteran that it is his responsibility to report for all scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond. The appeal must then be returned to the Board for appellate 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).