Citation Nr: 1326434 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-16 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for prostatic hypertrophy with urinary obstruction, to include as secondary to type 2 diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction (ED), to include as secondary to type 2 diabetes mellitus. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from March 1969 to June 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Honolulu, Hawaii, Department of Veterans Affairs (VA) Regional Office (RO). 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 Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to the matters on appeal. See 38 C.F.R. § 3.159. The Veteran maintains that his prostatic hypertrophy and ED have been aggravated by his service-connected diabetes mellitus. In May 2011 he was afforded a VA examination in connection with these claims, at which time BPH [benign prostatic hypertrophy] post TURP [transurethral resection of prostate] 2005 and ED were diagnosed. The examiner opined that the Veteran's BPH and ED were not caused by or the result of enuresis, mild prostatitis and chancroid for which the Veteran was seen in service. In a supplemental opinion in December 2012, the May 2011 VA examiner opined that it is less likely than not that the Veteran's BPH and ED are proximately due to or the result of his service-connected diabetes mellitus. The examiner explained that the ED had been attributed to hypertension (which is not service-connected), and that diabetes is not a known cause of BPH. Under governing caselaw consideration of a claim of secondary service connection must include consideration of whether the disability for which service connection is sought (here post-op BPH, ED) was aggravated by an already service connected disability (type 2 diabetes). Governing caselaw also provides that medical opinions merely stating that a claimed disability was not proximately due to, caused by, or the result of an already service-connected disability (without rationale) are inadequate as to the aggravation aspect of a secondary service connection claim. Regarding aggravation of ED by diabetes, in December 2012 the examiner cited to the fact that the Veteran already had ED prior to the diagnosis of diabetes and, in essence, that the baseline severity of the ED has not changed since because the dosage of medication prescribed for ED had not increased in the interim. That explanation does not address the possibilities that an incipient (and not yet diagnosed) diabetes may have contributed to the ED or that the dosage of medicine prescribed for ED may not remained unchanged because the disability did not increase in severity but due to other factors (e.g., higher dosage contraindicated by other factors, or lack of interest in more aggressive treatment). The May 2011 examination report and December 2012 supplemental opinion by the May 2011 examiner are inadequate to properly address the aggravation aspect of the Veteran's secondary service connection claims. Consequently, a remand to secure a further medical advisory opinion is necessary. The case is REMANDED for the following: 1. The RO should arrange for the record (to include this remand) to be returned to the physician who examined the Veteran in May 2011 (and provided a supplemental opinion in December 2012) for review and a supplemental advisory medical opinion that responds specifically (with explanation of rationale) to the medical questions (stated below) remaining. [If the May 2011 examiner is unavailable to provide the opinions sought, the case should be forwarded to another appropriate physician for such opinions, based on review of the record.] The examiner should provide opinions that respond to the following: (a) Is it at least as likely as not (a 50% or greater probability) that the Veteran's prostatic hypertrophy with urinary obstruction was aggravated by (increased in severity due to) his service-connected diabetes mellitus? (b) If the response to (a) is yes (i.e., the Veteran's diabetes aggravated his prostatic hypertrophy) please identify the baseline level of prostatic hypertrophy that existed before the aggravation occurred, and the level of severity of such disability after the aggravation took place. (c) Is it at least as likely as not (a 50% or greater probability) that the Veteran's ED was aggravated by his service-connected diabetes mellitus? If the response is no, the explanation of rationale should address (i) the possibility that an incipient (not yet diagnosed) diabetes contributed to the ED, and (ii) that possibility that non-increase in ED medication may have been the result of factors other than non-increase in severity of such disability. (d) If the response to (c) is yes (i.e., that the Veteran's type 2 diabetes aggravated his ED), please identify the baseline level of severity of ED that existed before the aggravation occurred and the level of severity of such disability after the aggravation took place. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical literature as appropriate. 2. The RO must ensure that the development sought is fully completed (there is an appropriate response to each question posed), and then re-adjudicate the claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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 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). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).