Citation Nr: 1317073 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-36 985 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 40 percent lumbosacral strain with radicular pain into both lower extremities. 2. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from January 1975 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that rating decision, the RO denied the Veteran's claim for a rating in excess of 40 percent for his service-connected lumbosacral strain with radicular pain into both lower extremities. The RO also denied the Veteran's claim for entitlement to service connection for erectile dysfunction. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran was afforded a VA examination in connection with his increased rating claim in January 2009. As such, it has been well over 4 years since the Veteran's last examination. Moreover, his representative submitted a brief in which he stated that the Veteran's spine disability now requires epidural blocks because the pain has severely reduced his daily activities and incapacitates him most days. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As to the Veteran's claim for service connection for erectile dysfunction, the Veteran has asserted that his erectile dysfunction is secondary to medications he takes for his service-connected disabilities. The Board notes that, under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran was afforded a VA examination in January 2009, and the physician noted that the Veteran was on high-powered medications, methadone, and hydrocodone. The Veteran was also taking Wellbutrin for depression. The physician concluded that it was plausible that the Veteran's erectile dysfunction was secondary to medications. However, the physician stated that it would be mere speculation to say which medication caused the problem or to say, definitely, that it was a medication that was causing the erectile dysfunction. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that an additional medical opinion is necessary for determining the nature and etiology of the Veteran's erectile dysfunction. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers who have treated him for his spine disability and erectile dysfunction. After obtaining any necessary authorization, all treatment records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be made in the file. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbosacral strain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected spine disability. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected spine disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of incapacitating episodes over the past 12 months and identify and describe all neurological manifestations of the service-connected spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. 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. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, 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. 3. The Veteran should also be afforded a VA examination to determine the nature and etiology of his erectile dysfunction. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner is advised that the Veteran is service-connected for lumbosacral strain with radicular pain into both lower extremities, an anxiety disorder, dermatitis (rash in groin), gastroesophageal reflux disease (GERD) and tension headaches. He or she should review the claims file and document the medications used to treat these service-connected disabilities. The examiner should opine as to whether it is at least as likely as not that the Veteran's erectile dysfunction is related to his military service. He or she also state whether it is at least as likely as not that that the Veteran currently has erectile dysfunction that is caused or aggravated his service-connected disabilities, including the medications used to treat those disorders. (Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.) (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 conclusion as it is to find against it.) In rendering the opinion, 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. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, 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. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. 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). _________________________________________________ JESSICA J. WILLS 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).