Citation Nr: 1335459 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-02 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for erectile dysfunction. ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1974 to November 1975 and from June 2004 to November 2005; he had intervening Army National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for erectile dysfunction and a chronic digestive disorder. The Veteran indicated on his February 2012 substantive appeal, VA Form 9, that he wished to testify at a Board videoconference hearing. The Veteran was scheduled for videoconference hearing in August 2012; he was notified of that hearing by a July 2012 letter. The Veteran thereafter failed to appear for his scheduled hearing and as of this time has not provided good cause for failure to appear. The Board will therefore proceed with adjudication. REMAND The record contains private treatment records from 1998 through 2010 from Clinton Family Physicians, the Veteran's private primary care provider. In a March 2004 treatment record, the Veteran is shown to be diagnosed with both erectile dysfunction and GERD; he was prescribed Cialis for his erectile dysfunction and Nexium for his GERD at that time. The Veteran's service treatment records from an enlistment and separation examinations in 1974 and 1975, respectively, which do not demonstrate any diagnosis, complaints or treatment for erectile dysfunction or any gastrointestinal disorder; the intervening service records for this period of service are likewise void of any diagnosis, complaints or treatment for either of his claimed disorders. On his March 2004 pre-deployment assessment-prior to his June 2004 entry onto active service-the Veteran indicated that he had ongoing medical issues and indicated that he was prescribed Nexium at that time. However, no specific diagnoses for GERD or erectile dysfunction are shown on any of those March 2004 medical documents; likewise, all of the pre-deployment assessments shown in October 2004-after entry, but just prior to deployment to Iraq-the Veteran is shown to be taking Nexium, though no diagnoses of erectile dysfunction or GERD are shown at that time. The Veteran is not shown in service treatment records to be diagnosed with GERD until November 2005; there is no diagnosis of or treatment for erectile dysfunction noted in his service treatment records. On the basis of the foregoing, the Board finds that neither erectile dysfunction nor GERD-or any other gastrointestinal disorder-was "noted" on entrance into service in June 2004. The presumption of soundness therefore applies with respect to those disorders. See 38 U.S.C.A. § 1111 (West 2002). However, there is some evidence-the March 2004 private treatment-that those disorders pre-existed the Veteran's June 2004 active duty service. Accordingly, the Board finds that a remand of the two issues is necessary at this time in order to obtain a VA examination that addresses whether the Veteran's claimed disorders were not aggravated by military service. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that he may have had for his erectile dysfunction and/or gastrointestinal/GERD disorders, which is not already of record, to include any ongoing treatment with Clinton Family Physicians. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for a VA gastrointestinal examination in order to determine whether his current gastrointestinal disorder, including any GERD, pre-existed and was aggravated by military service. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. Following review of the claims file and examination of the Veteran, the examiner should identify any gastrointestinal disorders found, including GERD. The examiner should then address the following: (a) Whether the Veteran's gastrointestinal disorder, including GERD, more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to the Veteran's 1974-75 period of military service. The examiner should specifically discuss the Veteran's enlistment and separation examinations from 1974 and 1975, respectively, and their lack of any gastrointestinal findings, as well as the lack of any treatment for, complaints of, or diagnosis of any gastrointestinal disorder during that period of service. If the Veteran's gastrointestinal disorder is not found to be related to the Veteran's 1974-75 period of service, the examiner should then opine as to the following: (b) Whether the Veteran's gastrointestinal disorder, including GERD, clearly and unmistakably pre-existed his 2004-2005 period of military service. The examiner should address the March 2004 private treatment record documenting diagnosis of GERD at that time, prior to his active duty service which began in June 2004. If clear and unmistakable evidence exists, the examiner should explicitly note which evidence he/she relies on for that finding. (c) If clearly shown to pre-exist the June 2004 entry, whether the Veteran's gastrointestinal disorder, including any GERD, clearly and unmistakably was not aggravated (not made permanently worse beyond the normal progression of that disease) by the Veteran's military service. The examiner should discuss any pertinent 2004-2005 service treatment records. The examiner should also discuss any lay statements made by the Veteran with regards to any increase in/aggravation of symptomatology as a result of service. With regards to any increase in symptomatology demonstrated during military service, the examiner should specifically address whether such an increase clearly and unmistakably was the result of the normal progression of that disease, or not. The examiner must clearly and explicitly articulate the evidence relied upon for his/her finding if a finding of non-aggravation is found. (d) If a gastrointestinal disorder was not clearly pre-existing service and clearly not aggravated thereby, whether the Veteran's gastrointestinal disorder, including GERD, more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to the Veteran's 2004-2005 period of military service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Schedule the Veteran for a VA genitourinary examination in order to determine whether his current erectile dysfunction pre-existed and was aggravated by military service. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The examiner should address the following: (a) Whether the Veteran's erectile dysfunction more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or are otherwise related to the Veteran's 1974-75 period of military service. The examiner should specifically discuss the Veteran's enlistment and separation examinations from 1974 and 1975, respectively, and their lack of any erectile dysfunction findings, as well as the lack of any treatment for, complaints of, or diagnosis of erectile dysfunction at that time. If the Veteran's erectile dysfunction is not found to be related to the Veteran's 1974-75 period of service, the examiner should then opine as to the following: (b) Whether the Veteran's erectile dysfunction clearly and unmistakably pre-existed his military service that began in June 2004. The examiner should address the March 2004 private treatment record documenting diagnosis of erectile dysfunction at that time, prior to his active duty service which began in June 2004. If clear and unmistakable evidence exists, the examiner should explicitly note which evidence he/she relies on for that finding. (c) If shown to pre-exist this period of service, whether the Veteran's erectile dysfunction clearly and unmistakably was not aggravated (not made permanently worse beyond the normal progression of that disease) by the Veteran's military service. The examiner should discuss any pertinent 2004-2005 service treatment records. The examiner should also discuss any lay statements the Veteran has made with regards any increase in/aggravation of symptomatology as a result of service. With regards to any increase in symptomatology demonstrated during military service, the examiner should specifically address whether such an increase clearly and unmistakably was the result of the normal progression of that disease, or not. The examiner must clearly and explicitly articulate the evidence relied upon for his/her finding if a finding of non-aggravation is found. (d) If erectile dysfunction was not clearly pre-existing service and clearly not aggravated thereby, whether the Veteran's erectile dysfunction more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's 2004-2005 period of military service. All opinions must be accompanied by a clear rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the agency of original jurisdiction should review the claims file and readjudicate the Veteran's claims of service connection for a gastrointestinal disorder, to include GERD, and erectile dysfunction. If a benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY 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) (2013).