Citation Nr: 1338254 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-05 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for erectile dysfunction , claimed as secondary to the service-connected diabetes mellitus type 2. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from February 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida that granted service connection for bilateral hearing loss and diabetes mellitus, type II, and denied, among other issues, the claim for service connection for erectile dysfunction. In addition to a claim of entitlement to service connection for erectile dysfunction, the Veteran also had filed claims of entitlement to increased disability ratings for his service-connected diabetes mellitus and bilateral hearing loss. However, in his January 2013 appeal to the Board, the Veteran clearly indicated that he only desired to appeal the issue of entitlement to service connection for erectile dysfunction, as secondary to his service-connected diabetes mellitus, to the Board. Finally, the Board notes that the Veteran filed a statement in March 2010 that clearly expressed dissatisfaction with the October 2009 rating decision. While this was treated as a new claim for benefits, it is in fact a timely notice of disagreement with the October 2009 rating decision. For reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Veteran contends that he is entitled to service connection for erectile dysfunction as secondary to his service-connected diabetes mellitus, type 2. Regrettably, an additional remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The record reflects that the Veteran was afforded a VA genitourinary examination in September 2009. The examiner concluded that the Veteran suffered from erectile dysfunction. The examiner opined that this condition was not a complication of diabetes, since the Veteran had many factors such as depression, obesity and hyperlipidemia that can cause erectile dysfunction without diabetes. The examiner also stated that this was not a condition that was worsened or increased by the Veteran's diabetes. The examiner offered no rationale in support of this conclusion. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). As such, the Veteran should be afforded the opportunity to appear for a new examination pursuant to which an opinion that is fully supported by clearly-stated rationale is provided. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and that the record is complete, the RO should obtain and associate with the clams file all outstanding, pertinent records, to include from the VA Medical Center in West Palm Beach. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent outstanding, private record. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from appropriate VA facility(ies)-to include the West Palm Beach VAMC-any outstanding, pertinent records of evaluation and/or treatment of the Veteran. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses have been associated with the claims file, the Veteran should be scheduled for a VA examination before an appropriate physician for an opinion regarding the etiology of his erectile dysfunction. The Veteran's entire claims file, to include a complete copy of this REMAND, along with all relevant Virtual VA records, must be made available for review by the examiner in conjunction with the scheduled examination, and the examination report should reflect consideration of his documented medical history and assertions. considered. The examiner is asked to perform all indicated tests and studies, and address the following: Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's erectile dysfunction (a) was caused by or (b) is permanently aggravated by his service-connected diabetes mellitus. Aggravation is defined as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. complete rationale must be provided for the opinion offered. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After accomplishing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal in light of all of evidence of record and pertinent legal authority. 7. If the benefit sought on appeal remains denied, provide the Veteran and his representative an appropriate supplemental statement of the case as to the issue on appeal, and afford them a reasonable period of time within which to respond thereto before the claims file is returned to the Board. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).