Citation Nr: 1324872 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 09-12 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for erectile dysfunction to include as secondary to service-connected diabetes mellitus. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1969. He had service in the Republic of Vietnam in July 1968 and August 1969 and has been awarded a Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from an October 2007 rating decision, which in pertinent part, denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, erectile dysfunction, and diabetic retinopathy. On his April 2009 Form 9, the Veteran limited his appeal to service connection for peripheral neuropathy of the bilateral upper and lower extremities and erectile dysfunction. In June 2013, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the local RO; a transcript of that hearing has been associated with the Veterans Virtual VA claims file. 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 Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). At a July 2007 VA examination, the examiner noted that the Veteran was diagnosed with diabetes mellitus, type II, in December 2006 and had complaints of erectile dysfunction for the past 5-7 years. The examiner found that as the erectile dysfunction started prior to the diagnosis of diabetes mellitus, it was not caused by diabetes mellitus. The Board finds the VA examiner's opinion inadequate as the VA examiner failed to address whether or not the Veteran's erectile dysfunction was aggravated by his service-connected diabetes mellitus. Additionally, the Veteran's representative reported that diabetics can go many years with high levels of blood sugar prior to being diagnosed with diabetes mellitus, so that it was possible that the Veteran's erectile dysfunction and peripheral neuropathy did not predate his symptoms of diabetes. Therefore, a new VA opinion is necessary that considers the representative's contentions that the Veteran likely had symptoms of diabetes long before receiving an actual diagnosis. The opinion should also address whether or not the Veteran's erectile dysfunction was aggravated by his diabetes mellitus or was caused or aggravated by any other service-connected disability, including post traumatic stress disorder (PTSD), and malaria. At a July 2007 VA examination, the examiner noted the Veteran's complaints of tingling in his feet; however, the examiner found that there was no evidence of peripheral neuropathy found at the time of the examination. During his Board hearing, the Veteran testified that he had tingling in his feet as well as in his fingers. As more than six years have passed since the Veteran was previously examined and the Veteran has reported additional symptoms suggestive of peripheral neuropathy that were not previously considered by a VA examiner, a contemporaneous medical examination is necessary. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). It appears that pertinent medical records remain outstanding. During his June 2013 Travel Board hearing, the Veteran indicated that he seeks treatment from a VA physician. Additionally, treatment records from the Lorain VA Community-Based Outpatient Clinic reflect that the Veteran was followed for his diabetes mellitus and any potential complications. However, the last dated treatment record associated with the claims file is from January 2009. VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees, including VA treatment records. Bell v. Derwinski, 2 Vet. App. 611 (1992). If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). The Board observes that prior attempts to obtain treatment records from Dr. F.M.H were unsuccessful. However, on remand, VA should ask the Veteran to once again complete a VA Form 21-4142 so that VA may obtain treatment records from Dr. F.M.H. or to submit the treatment records himself. The Veteran should also be provided an opportunity to identify and/or submit any other relevant treatment records from a private provider. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall provide the Veteran with the opportunity to identify any additional relevant medical treatment records, from either private or VA facilities, which pertain to his service connection claim for erectile dysfunction and peripheral neuropathy of the bilateral upper and lower extremities, secondary to service-connected diabetes mellitus. Appropriate steps should be taken to obtain any such identified record, specifically including treatment records since January 2009 from the Lorain VA Community Based Outpatient Clinic and since December 2006 from Dr. F.M.H. If any identified records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, and include a copy of such in the claims file. The Veteran must be notified of the attempts made to obtain outstanding records, informed as to why further attempts would be futile, and allowed the opportunity to obtain or provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All efforts to obtain these records should be documented in the claims file. If these records are unavailable, this should be documented in the claims file and the Veteran should be so informed. 2. After the completion of the development in paragraph 1 above, schedule the Veteran for an appropriate VA examination(s) to determine the nature and etiology of his erectile dysfunction and any other neurological disabilities, including peripheral neuropathy of the bilateral upper and lower extremities. The claims file and Virtual VA record should be reviewed in conjunction with such examination(s); consideration of such should be reflected in the completed examination report or in an addendum. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should: a) Identify all current neurological disabilities, b) opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities, or any other neurological disability identified had their onset in service or are otherwise the result of a disease or injury in service, including Agent Orange exposure. b) If the examiner finds that the Veteran's erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities, or any other neurological disability identified are not at least as likely as not a result of a disease or injury in service, to include Agent Orange exposure, the examiner should also opine as to whether it is at least as likely as not (50 percent probability or more) that the erectile dysfunction, peripheral neuropathy of the bilateral upper and lower extremities, or any other neurological disability identified are caused or aggravated by a service-connected disability (the Veteran is currently service-connected for diabetes mellitus, malaria, and PTSD). c) If aggravation is shown, the examiner should comment on any evidence of record created prior to the aggravation that shows a baseline of the disabilities prior to the aggravation. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner should provide a reason for doing so. The AOJ should ensure that any examination report complies with the instructions of this remand. Thereafter, the claims should be re-adjudicated. If a benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should 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). _________________________________________________ J. A. MARKEY 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).